Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

Graham of Claverhouse
v.
The Earl of Lauderdale

1684.

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January 24.—Colonel Graham of Claverhouse insisting against the Earl of Lauderdale, upon the king's letter, to dispone to him the house, yards, and parks of Dudhope, with the constabulary of Dundee, he paying 20 years' purchase for it to the Chancellor,—to which 20 years' purchase, Lauderdale, on his transaction with the Chancellor, was assigned:—It was alleged,—Esto this were the king's cause, yet, not being called within 48 hours after the returning of the process, he behoved to have 15 days' advertisement, conform to the 16th Act of Parliament I672, ratifying the regulations: which he had not got.

The Lords repelled this, in regard the king's letter mentioned supra, 13th December 1683, recommending to them to agree, was a medium impedimentum; and there was but 48 hours between the upgiving of the tryste and the calling, which satisfies the Act of Parliament.

Then alleged,—The sum of £4000 sterling of the Mint-decreet being gifted to Claverhouse, the king was denuded, and it came to be in the case of a common donatar; who had not the privilege of a summary calling, but behoved to abide the course of the roll.

The Lords find the letter made it still as if it were in the case of one of the king's own causes.

After repelling thir dilators, then Claverhouse insisted that Lord Lauderdale might either purge all the incumbrances that affected the house and yards, or else give him real warrandice out of his other estate.

The Lords delayed to answer to this, seeing the offer of absolute warrandice may satisfy; for, by an inhibition served upon it, it may be made more effectual than real warrandice, which is restricted to a particular subject, out of which it is given; whereas an inhibition stops the disposing upon any lands within those shires where it is served and executed. Vide 31st January current.

Vol. I. Page 264.

January 31.—Claverhouse's cause against the Earl of Lauderdale, mentioned 24th January current, was heard in presence; and Lauderdale offering him a disposition of the house, yards, and parks of Dudhope, and constabulary of Dundee, in terms of the king's letter gifting the same to Claverhouse, at the rate of 20 years' purchase, to be paid by him to the Chancellor, which right the Chancellor had assigned in August last to Sir John Maitland, when he agreed with Lauderdale:—It was alleged,—1mo, That the Chancellor had not right to the 20 years' purchase. Against which the king's letter was opponed. 2do, That he behoved to disburden it of all incumbrances. 3tio, He must renounce his relief against Sir John Falconer and his cautioners, viz. Southesk and Glenfarquhar, the President's father, conform to the king's letter.

The reason Claverhouse gave why he was not bound to pay 20 years' purchase, was, that it was expressly communed between the Chancellor and him, that he should have it gratis without any payment, (which the Chancellor denying on the bench, Clavers replied with some heat;) and that the king gave him freely out of the fine of the Mint-dccreet £4000 sterling, or else the house, yards, parks, &c. of Dudhope; and if he pay 20 years' purchase for them, he gets no donative at all, but pays the full worth and more.

The Lords, the next day, having advised this cause, found Claverhouse bound, by the king's letter, to pay twenty years' purchase for all within the parks, and reserved out of that which is appointed to be disponed to the Chancellor: and, for liquidating thereof, granted commission to value the lands, and to report what they are worth, at twenty years' purchase. And find the disposition offered not sufficient, as wanting the Lady Maitland's consent, and that it ought not to relate to the twenty years' purchase: and therefore ordained Lauderdale, against the same day, to have a disposition ready of these lands and parts, with real warrandice out of his other estate, to be given up to Claverhouse, upon payment of what shall be determined to be the twenty years' purchase; with this clause farther,—That, in case of eviction of these lands, Lauderdale shall be bound by the said real warrandice, to the value of £4000 sterling, which was gifted to Claverhouse out of his fine; but the said lands, worth £4000 sterling, only to be affected quoad valorem of the lands disponed. Which was most iniquous and inadequate, like a pretium affectionis; for the lands to be disponed are not worth the fourth part of that sum, and this real warrandice will be a mean to obstruct the sale of the lands to be thus given in warrandice.

Lauderdale had another defence, That, simul et semel with his giving this disposition, the king's letter appointed him to get his free remission for any malversation whatsoever he could be charged with.

This action being called again on the 6th of February, the Lords found my Lord Maitland subscribing the disposition, and his Lady's renouncing, sufficient to secure Claverhouse against her liferent; and that —Scot of Rossie's consenting to the said disposition was sufficient to purge his warrandice he had thereon for the lands of Craig; and found no inhibitions could affect the house, parks, and constabulary of Dundee, but only those that were served at the market-cross of Forfar, as the head burgh of the shire of Angus, wherein the lands lie. And, as to the incumbrance condescended upon by Claverhouse, of the reduction depending against Lauderdale at the instance of the Earl of Dundee's creditors for reducing his decreet of recognition, the Lords appointed the Lord Pitmedden, before whom the same is depending, to discuss it summarily before the report come back of the value of the lands: and, in case the creditors do not insist, ordain Lauderdale to give him real warrandice against the inhibitions served upon the dependance. Vide 28th February 1684.

Vol. I. Page 265.

February 28.—Claverhouse's cause against the Earl of Lauderdale, mentioned 31st January 1684, was called; and the Lords found they might advise it summarily without enrolling, it being a part of the king's cause; and that they cannot oblige Sir John Maitland to consent to his father's disposition to Claverhouse; but ordain the clerk to mark on the process that he was cited. And find, by the probation, that the twenty years' purchase of Dudhope, &c. comes to £6000 Scots; and, on his paying thereof, ordain the disposition to be delivered up to him before the 20th of March; betwixt and which time Lauderdale may obtain my Lord Maitland and his Lady's consent; otherwise ordain the decreet to be extracted. Vide 29th March 1684.

Vol. I. Page 276.

March 29.—The King's remission to the Earl of Lauderdale, and his son, came down; but a letter clogged it with two qualities:—1mo, That he should perfect his disposition to Claverhouse, (vide 28th February 1684;) 2do, That he should discharge his recourse of relief against Sir John Falconer, and the other officers of the Mint: and bore peremptorily that thir should be performed within eight days after sight; and if they Avere delayed, (which his Majesty would not believe,) then the remission not to be past the seals.

Vol. I. Page 285.