Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Thomas Falconer younger of Kincorth, and Alisone Kellie his Spouse,
v.
Patrick Home of Coldinghamelaw

Date: 3 December 1663

Click here to view a pdf copy of this documet : PDF Copy

By a minute of contract and agreement betwixt Patrick Home of Coldinghamelaw, and Margaret Greirsone, his spouse, on the one part, and Thomas Falconer, younger of Kincorth, and Alisone Kellie, his spouse, on the other side, past in July, 1662; the said Patrick Home sells and dispones so much of his lands, living, and estate, as would extend to, be worth, and pay, of constant yearly rent, now, and in all time coming, the quantity of four chalders, and four bolls, of good and sufficient bear, of the old met and measure of Duns; item, To enter the said Thomas to the void actual and real possession of the said lands; item, To warrant them at all hands; item, To deliver him the keys of the houses on the said lands; item, To aid, assist, and concur with him in defence of his real, actual, and peaceable possession thereof; item, To extend, keep, and perfyte the said minute of agreement betwixt them on the first occasion. This minute, in January, 1663, Thomas causes registrate, and charges Coldinghamelaw with letters of horning, for not fulfilling the same; and, therefore, to pay the 1000 merks of penalty contained therein. This charge Coldinghamelaw suspends, on thir reasons: 1mo, Because the same is altogether general, noways condescending in what particular obligement of the said contract he has failyied, seeing he is yet most willing to fulfill them all; and, therefore, till a special condescendence be made, the letters ought to be suspended; 2do, In September, 1662, he offered to the charger a just and true rental of sundry persons, his tenants and fermorars, within his barony of Law, that have been in constant use of paying to him for their lands, four chalders and four bolls of the met of Duns; desiring him to accept thereof as the implement of the said contract; item, What inhibitions, comprisings, infeftments, tacks, or other rights, might affect the lands offered, he was content, upon their mutual subscribing of the contract, at the sight of able and judicious lawyers, to purge the same; which the charger refusing to accept, he took instruments in Robert Pow's, a notary's hands, that he might be free of the penalty charged for: by which it appears how willing he was to perfyte the said minute, in every point thereof, and how unjustly he is now charged.

This suspension being called; for the charger, the contract registrate is produced: for the suspender, his protestation: all which being considered by the Lords, they granted commission to Home of Blacader, and Ramsay of Idinton, to try the rent of the said lands offered by the suspender, by whom they are possessed, for what farms, to clear their marches from the neighbouring lands, to consider their tacks, and for that effect to call the said parties before them, and then to report; which they accordingly did, some refusing to give their declarations upon the quantities of the lands possessed by them, and so reported. Their report the Lords found defective in the quantity of bear controverted, (there being much oats in their rentall:) whereupon they grant a new commission to the Lord Justice Clerk, as knowing the lands, bounds, and parties, to cognosce upon the validity and difference betwixt the bear and the oats paid out of the lands designed; which he having seriously considered, his report was, that he found the rentall of the lands offered, to want some fourteen bolls bear to complete the four chalders and four bolls bear, met and measure foresaid, for which may be allowed nineteen bolls of oats paid out of the two husband lands beside.

This report the Lords having considered, they approved of the same, interponed their authority thereto; and decern the letters of horning to have further execution, as being orderly proceeded, ay and while the suspender fulfil, perfyte, and accomplish all and haill the clauses, heads, articles, and conditions of the said minute, as they are before deduced; as also ay and while he purge all and haill the burdens affecting theaid lands to be given up in a note by the charge; [and] till which time, that the writs and evidents produced lie in the clerk's hands.

Suspender, Mr. Alexander Spottiswood. Alt. Mr. David Falconer. Signet MS. No. 19, fol. 6.