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Scottish Court of Session Decisions >>
Earl Marshal v Wadsetters. [1683] Mor 16534 (00 February 1683)
URL: http://www.bailii.org/scot/cases/ScotCS/1683/Mor3816534-029.html Cite as:
[1683] Mor 16534
Import of the clause in the act of Parliament allowing offer of cuation.
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The late Earl Marshal having, in the year 1661, offered caution, and required his proper wadsetters to restrict, this Earl of Marshal, as having right to the propety and reversion, raised a process to have the wadsetters declared liable for the superplus.
Alleged for the defenders: The clause in the act of Parliament allowing the offer of caution during the not-requisition, imports, That the craver of the benefit of restriction should be liable to the requisition; and this pursuer not being liable thereto, for that he is a singular successor, cannot crave the benefit of the restriction, unless he subject himself to the requisition.
The Lords found the defender's allegeance relevant.—This decision seems to be irregular, the clause in the act importing no more but the condition of the wadset the time of the requisition, viz. that it were not loosed; for in the case of requisition there was no place for restriction, the party's mind being then to receive his money, and not to let it lie in wadset. Thereafter, March, 1683, the Lords allowed the Earl to be liable for the requisition after five years, from the date of the interlocutor; then it was stopped; and in March, 1685, upon a debate in presence, the Lords found just the contrary.
