Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

William Syme and Elizabeth Kinloch
v.
William Baillie

1679.

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January 9.—Mr William Syme, and Elizabeth Kinloch his mother, against William Baillie, brother to umquhile Mr John Baillie, advocate, on the passive titles, for paying a sum whereto she had acquired right by assignation from a creditor of the said Mr John, her [1ast] husband.

Alleged,—She had accepted from Mr John a disposition of all his goods, with the burden of his debts; and so, ipso momento that the debt came in her person by the assignation, it, ipso jure, became extinct: the same person being both debtor and creditor, confusione tollebatur obligatio. Et quern de evictione tenet actio, eundem agentem repellit exceptio; et frustra petit quod mox esset restitutura. And it could not reconvalesce by her transferring the right of it to her son, because it was extinct. See Stair, tit. 11, §9, Of the Confusion of Obligations; and tit. 31, § 17; et supra, 6th December 1678, Cleland.

2do, alleged,—William was not vitious intromitter with the eighth part of the ship libelled, because he had right to it by a disposition, which purges vitious intromission.—But, in this case, they must make the subject intromitted with forthcoming to the creditors. Vide thir parties, 31 st July 1679.

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July 31.—In the action,———Syme against William Baillie, (9th Jan. 1679,) the relict having deponed that her disposition from her husband gave her right and title to call in for all his debts, and consequently for this:

At the advising, I alleged,—That her disposition was donatio inter virum et uxorem, and so revocable, and revoked tacite by the posterior disposition to his brother.

Replied,—It was not a pura donatio; because she had paid debt equivalent to the benefit she made by the disposition.

The Lords ordained her to count and reckon, that it might appear whether or not she was lucrata by the said disposition.

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Anent Title to Pursue.

It was doubted, where one pursues an improbation of his father's bond as false, whether he must be served heir before he can have a title to pursue.

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Anent Charges to enter to Superiority.

A superior is not infeft, and the vassal is unentered, and desires to enter. Quær, what he shall do. Whether shall he only charge his superior to receive him, (which he cannot validly do, nor give him a charter, he not being yet his superior;) or if he be obliged to charge him upon forty days to enter to the superiority, conform to the 57th Act Parliament 1474, and then to infeft him; and upon his refusal then to apply to the next superior. This is undoubtedly the securest way; and being used, wili, in a competition, be reputed equipollent to a past infeftment.

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Anent the Sale of Lands.

Where a man buys land at the Whitsunday, and makes it a Whitsunday's bargain, by paying the price at the term; the buyer, in that case, by the received custom, gets the haill crop that is then upon the ground, or the whole money rent paid forth of the land bought; albeit the seller gets only half a-year's annualrent of the price, from the Whitsunday at which the bargain is made to the Martinmas thereafter: because, though the crop be due betwixt Yule and Candlemas by the tenants, yet commonly masters, when they sell it, make not money of it till the next Whitsunday, and so it comes in to him then instead of the annualrent of the price which he gave out. But if it be a Martinmas bargain, then the buyer gets the half of the crop that is newly separated from the ground, by the same rule, and enters to the labouring for the ensuing year; else he should lose half a-year's annualrent of his money, and get nothing in place thereof. Even as a liferenter dying after Whitsunday gets the half, and, dying after twelve o'clock on Martinmas-day, he gets the whole. Vide at the end of February 1680.

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Anent Cautioners.

Where one or more cautioners, with his own means, and not out of the means of the principal debtor, pays a debt, the Lords have lately ordained the creditor to assign the cautioner payer, not only against the principal debtor, but also against the co-cautioners, who are bound to relieve one another pro rata. Yet the contrary had been decided, that a creditor was not bound to assign to a cautioner, but only to discharge him.

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Anent a Liferenter's Right to Teinds.

Where a woman is liferenter of lands only, without express mentioning of the teinds, and these teinds are valued; some think, by the Act of Parliament 1633 and the posterior acts for valuing teinds, the liferenter may claim these teinds, (without any assignation or right to the decreet of valuation,) upon her offering to pay the valued duty; it being allowed to a liferentrix to value the teinds of the liferented lands as well as to the fiars. But if the teinds had been bought before the constitution of her liferent-right, may she draw ipsa corpora of the teinds, upon her offering to pay yearly the annualrent of the price that was given for the sale of the teinds? Some think she will not have right to the decreet of sale, on that offer.

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Anent Violent Profits.

In a decreet of spuilyie of sheep, the violent profits are decerned to be paid from the day that the spuilyie is proven to have been committed. It was inquired whether the violent profits of the goods for that very day whereon the spuilyie was perpetrated will be included in that decerniture, and may be sought. It is thought not; because violent profits are penal and odious, and so the time is not counted to run de momento in momentum, and commences from that day exclusive. Some may argue the interpretation should be strictly taken against the spulyier, in odium spoliantis.

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Anent Donatars.

By law the donatar is obliged to pay the debt contained in the horning whereupon his gift proceeds: as also, by Act 1621, sums not bearing annualrent do bear it after denunciation of the horning; so that the rebel debtor denounced is from that time liable in annualrent. But the question is, whether or not the donatar is in the same case with the debtor, or in a better case, and if he will be liable for the annualrent due after the horning, and existing upon the denunciation, as well as for the annualrents due before the horning, as the common debtor is. 2do, Since the donatar is bound to purge the debt of the horning, what if he alleged that, by intromission upon his gift, he hath not recovered so much as would satisfy the debt of the horning? I think, as to the debt of the horning, the donatar is like to an executor bound to do diligence, and to assign.

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