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Ramsay v Clapperton of Wylliecleugh. [1688] Mor 16535 (16 June 1688)
URL: http://www.bailii.org/scot/cases/ScotCS/1688/Mor3816535-032.html Cite as:
[1688] Mor 16535
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One Ramsay, in England, having right to the reversion of a lucrative proper wadset in the person of Clapperton of Wylliecleugh, required him to take caution, and quit the possession; and insisted in a count and reckoning for the superplus above the annual-rent.
Alleged for the defender: The offer was not sufficient; because, 1mo, It was made by a notary for strangers who were minors, and no procuratory mentioned in the instrument or shewn; 2do, The offer was but general, without naming any person, so that it could not be considered, if the caution was sufficient.
Answered: The act of Parliament requires no instrument, or that the party should be present, or send a procuratory; and if that had been questioned, a procuratory should have been sent and shewn; 2do, The defender did not desire to know the cautioner's name; and he hath no prejudice by the delay, having possessed since. And as to any superplus rent above the annual-rent, the defender is in lucro captando, and the pursuer in damno evitando.
The Lords sustained the requisition to restrict; which is contrary to former decisions.
Harcarse, No. 1031. p. 293.
***The following, although of a later date, is the same case.
