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Hamilton of Kinkell v Ayton of Kinaldie. [1697] 4 Brn 451 (7 July 1697)
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[1697] 4 Brn 451
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Hamilton of Kinkell v. Ayton of Kinaldie
Date: 7 July 1697
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Hamilton of Kinkell pursues Ayton of Kinaldie for reducing an old disposition of some lands made by his predecessor on death-bed. Kinaldie's defence was, He and his authors had possessed forty years without interruption.
Kinkell answered,—He stood intercommuned in the late Government, for opposing Episcopacy, from 1675 till 1689, when it was removed, and so that time must be deducted from the prescription, quia contra non valentem agere non currit.
Replied,—That brocard takes only place where one non valet agere ob defectum tituli; as if he be forfeited, but not ob impedimentum facti, on an accidental occasion, or such a personal impediment as a citation for conventicles, and in regard of his contumacy, that letters of intercommuning were served against him; for that did not divest him of the right. See 25th January 1678, Earl of Lauderdale against Tweeddale.
Duplied,—As he durst not appear all that time, either to pursue or defend, so neither might he constitute an assignee; for none durst converse with him, or receive a right from him.
The Lords did not determine if this intercommuning was a sufficient interruption; but, before answer, ordained him to condescend and instruct how long it lasted.
