Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Lumsden of Cushney
v.
Leith of Leithhall

Date: 4 January 1694

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Jan. 4.—The Lords advised the long debate between Lumsden of Cushney and Leith of Leithhall: and having read the charter granted by Gordon, elder and younger of Kirkhill, to Leith, in 1635, bearing both to be disponers jointly, and to be bound in absolute warrandice; they found it accresced to the father, and validated his right, which was formerly improven by a certification; and so that the father's right was better than the son's; and consequently, though the son's right might be a probable coloured title to defend him against a passive title, yet it was not sufficient to free him from restitution in quantum he was lucratus by his intromission.

Vol. I. Page 588.

January 17.—In the question between Cushney and Leithhall, mentioned 4th current, the Lords having allowed a reexamination of some witnesses, in respect they not being able to write themselves, it was alleged that the Sheriff of Aberdeen had set down their depositions otherwise than they had truly sworn; yet now, on a bill given in against it, the Lords recalled that warrant, in regard these witnesses had given declarations before the ministers and elders, retracting their former depositions, and alleging they were wrong marked: for the Lords thought them suspicious, and that it might be of dangerous consequence to reexamine such witnesses, who probably were corrupted in it; and that all witnesses who could not write might always pretend that the judges, or clerk, had otherwise worded their oath than they did themselves.

Vol. I. Page 592.