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Scottish Court of Session Decisions >>
The Lords of Council and Session v Sir James Stamfield's Creditors. [1696] 4 Brn 344 (22 December 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040344-0731.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Lords of Council and Session v. Sir James Stamfield's Creditors
Date: 22 December 1696
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Halcraig reported the competition between the Lords of Session, and Sir Stephen Fox, and the other creditors of Sir James Stamfield, who was pursuing a roup and sale of his lands of Haills, Morhame, &c. It was contended for the Lords, That they, being now proprietors, would not suffer the lands to be exposed to roup; for, 1 mo. They had a wadset from my Lord Kingstoun for 100,000 merks, in 1663, affected with a back-tack; and the irritancy being incurred, they had declared the same; as also, had apprised in April 1671, which was long since expired.
Answered,—The wadset was not over the whole lands, but only a part of them; and, notwithstanding of the declarator, the Lords had never extended their rights beyond their annualrents, nor put themselves in possession; and, being both judges and party, it was fit they should proceed with the more tenderness; and, as to their apprising, there was one led by Dorothy Clerk, (whereon infeftment had followed;) and that being in March 1676, the Lords were not within year and day of it.
Replied,—Their restricting themselves to the annualrent was only ex gratia, and can never prejudge the full extent of their right, if they please to claim it; and though Clerk's apprising was more than year and day prior, yet the infeftment on it was posterior to the Lords' apprising; and they designed no advantage, but only to hinder the roup, that so vast a sum of money might not be cast in their hand.
The Lords ordained the case to be argued in their own presence.
