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Scottish Court of Session Decisions >>
Walter Scot of Letham v The Earl of Marishal. [1687] 3 Brn 618 (00 January 1687)
URL: http://www.bailii.org/scot/cases/ScotCS/1687/Brn030618-0946.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1687.
Walter Scot of Letham v. The Earl of Marishal
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February 16.—The Lords advised a concluded cause at the instance of Walter Scot of Letham, against the Earl of Marshal, who suspended his bond of £9000, on this reason, that Sir John Scot had contravened the warrandice of his disposition, (for which the £9000 bond was given,) by making a prior right of the Stane of Benholm to Hercules Scot. Answered,—He is only a consenter, which is but a non repugnando, and he got no money from Hercules,—but the Earl got a renunciation of a wadset they had upon Urras; and if the Earl reclaim, they are content to repone, and be reponed.
The Lords found this a contravention, but that the offer to repone purged this contravention of the warrandice; and therefore found the letters orderly proceeded against the Earl. Vide 9th June 1687.
Vol. I. Page 448.
June 9.—Walter Scot of Letham's charge against the Earl of Marishal, mentioned 16th February 1687, is debated of new; and the Lords adhered to their former interlocutor; but ordained the Earl only to denude with the burden of the rights, dispositions, and ratifications he had granted, as obliged thereto by his transaction with Sir John Scot; for the Earl of Marishal alleged it was impossible for him to repone him, because res non erat integra, he being taken obliged to ratify rights which otherwise he might have quarrelled.
