Scottish Court of Session Decisions

Subject_1 WADSET.

Marishall
v.
Cargill

Date: 22 January 1697
Case No. No. 34.

Same subject.

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

The Lords considered a petition given in by the Earl of Marishal against Cargill of Auchtidonald, with the answers thereto. It was craved, he being a wadsetter, and near paid by the superplus duties more than satisfied his annual-rent; that, during the dependence of the count and reckoning, he might either cede his possession, and accept of sufficient caution from the Earl for what shall be found due to him upon the event of the counting, or else, if he chuse rather to continue his possession than accept of caution, that then he may find caution himself to refund what he shall be found to have intromitted with more than pays his wadset; and which was craved on this specality, that he was obæratus, and all that super-intromission would be utterly lost to the Earl. The Lords at first allowed trial and probation to be taken anent his solvency; and though upon report, it appeared his condition was very bad.; yet the Lords considered, that the 62d act of Parliament 1661 was a correctory law, and gave the reversers a favour, which they behoved to take as it stood; and seeing it did not oblige wadsetters, though insolvent, to find caution, they could not extend it, and therefore refused the desire of the Earl's bill.

Fountainhall, v. 1. p 759.