Scottish Court of Session Decisions

Subject_1 WARRANDICE.

Mr Alexander Ferguson
v.
Robert Ferguson

Date: 13 March 1685
Case No. No. 66.

Where eviction is imminent.

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

The case of Mr. Alexander Ferguson of Isle against Robert Ferguson of Hallhill, his uncle, was debated and advised: Hallhill by his bond is obliged to pay Isle the annual-rent of 2,000 merks, so long as he shall bruik the peaceable possession of these lands of Halhill; and he being pursued therefore, alleged, The condition of the bond had failed, for John Bannatine having a prior inhibition, raised a reduction, and obtained a decreet. Answered, This decreet was no sufficient eviction nor distress, because it was only a decreet of certification for not producing his writs, which he should not have suffered to pass; 2do, He had gotten a ratification from the reducer, which must accresce. Replied, A certification was all one in this case, because, though he had produced his writs, he would certainly have succumbed; 2do, Though the ratification bore gratis, yet he offered to prove it stood him 700 merks. The Lords, after a hearing in presence, found that decreet of certification was no sufficient distress, but that he should have defended, seeing there might be nullities in the execution of the inhibition; and there was probable ground to think the inhibition was paid, by his transacting with others, whose rights he had reduced.

Fountainhall, v. 1. p. 352.