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Scottish Court of Session Decisions >>
Earl of Argyle v Macdougals of Dumolich and Ziner. [1665] Mor 11971 (14 July 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor2811971-018.html Cite as:
[1665] Mor 11971
Earl of Argyle v. Macdougals of Dumolich and Ziner
Date: 14 July 1665 Case No. No 18.
A decree of Parliament found null by a multipointing without reduction.
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The Earl of Argyle having raised a double poinding, in name of the tenants of certain lands, calling himself, on the one part, and Macdougals on the other, as both claiming right to the mails and duties. Macdougals produce a decreet of Parliament, whereby they having pursued the late Marquis of Argyle, alleging, That he had obtained the right and possession of these by force, and oppression during, the troubles, whereupon his rights were reduced, and they restored to their possession. The Earl of Argyle produced his sasine, upon the King's gift, with two dispositions of these lands, granted to his father, one in anno 1632, and another in anno 1639, and thereupon craved to be preferred. Macdougals produced a disclamation of the process, in name of the tenants, and alleged no process, because the tenants, who were pursuers past from the pursuit. It was answered, That their names were but used, that the parties might discuss their rights, and so they could not disclaim it, being ordinary to use tenants' names in double poindings. It was answered, That there was no reason that tenants should be forced to make use of their names to intervert their master's possession:
The Lords found, that the tenants could not disclaim, especially the possession being but late, by decreet of Parliament, and was contraverse.
It was further alleged for Macdougals, that there was nothing particularly libelled as rents due by the tenants, and therefore there could be no sentence.
The Lords repelled the allegeance, and found the sentence might be in general to be answered of the mails and duties, as is ordinary in decreets conform.
It was further alleged for Macdougals, that seeing this double poinding was in effect now used as a declarator of right, no process thereupon, because in all declarators, law allows the defenders twenty-one days upon the first summons, and six on the next, that they may prepare, and produce their rights, and here there is but one summons on six days. 2dly, No process, because Macdougal's being founded upon a decreet of Parliament; my Lord Argyle produces no title, but only sasine, not expressing these lands, 3dly, Decreets, especially of Parliament’, cannot be taken away, but by reduction, and not thus summarily. It was answered, That my Lord Argyle insisted here for taking away the pretended decreet in Parliament; and restoring the King and donatar to the possession of the lands, so that in effect it is not so much a declarator of right as a possessory judgment. And as for the title, it is sufficient to produce a sasine, seeing, in the decreet of Parliament, my Lord Argyle's right and possession were quarrelled as wrong, and therefore were acknowledged to have been, and seeing Macdougals produces no other right, and the King's Advocate concurs; and if need be, my Lord Argyle offers to prove the lands in question are parts and pertinents of the lordship of Lorn, expressed in his sasine; and albeit this be pretended to be a decreet of Parliament, yet by sentence of Parliament since, it is remitted to the Lords, and is in itself visibly null, as having been intented against my Lord Argyle, and pronounced after his death and forfeiture, without calling the King's officers.
The Lords repelled these defences in respect of the replies.
