Scottish Court of Session Decisions

Subject_1 COMPETENT.
Subject_2 SECT. XXI.

In Competition, Pleas are receiveable by Exception, which otherwise would be Competent only by Reduction.

Justice
v.
Boyd

Date: 29 November 1671
Case No. No 93.

It was not found competent by exception, but by declarator, that a wadset was extinct by intromission.

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There being a wadset granted by Ludovick Keir to Dr Scot, the right of the wadset was apprised by John Boyd, who pursues the tenants for mails and duties. Compearance is made for Bailie Justice, deriving right from the reverser, who alleged preference, because he offered to prove the wadset satisfied and extinct, in so far as it being burdened with a back-tack, the wadsetter, without consent or authority of law, had entered in possession, and his intromissions did exceed the whole sums of wadset, principal and annualrent.—It was alleged, That this allegeance not being founded upon any article in the contract of wadset, but upon an unwarrantable intromission of the pursuer's author, it is not receiveable by way of exception, but by action of declarator of the expiring of the wadset by satisfaction; for though the Lords have sustained the satisfaction of apprisings by exception or reply, they have never done so in wadsets.

The Lords found the defence not competent by way of exception.

Fol. Dic. v. 1. p. 177. Stair, v. 2. p. 13.