You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
George Pitcairn, Commissary of Dunkeld, v Sir Thomas Dalziel of Bins. [1698] 4 Brn 421 (17 November 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Brn040421-0837.html Cite as:
[1698] 4 Brn 421
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
George Pitcairn, Commissary of Dunkeld, v. Sir Thomas Dalziel of Bins
Date: 17 November 1698
Click here to view a pdf copy of this documet : PDF Copy
General Dalziel dying, and leaving a considerable moveable estate, a competition arose betwixt the Commissaries of Edinburgh and Dunkeld, who should confirm his testament; and Dunkeld being preferred by a decreet in foro, Sir Thomas Dalziel of Bins, his son, did enter into a minute of contract with Mr George Pitcairn, Commissary of Dunkeld, in August 1688, by which he took him obliged to confirm it when required; and he became obliged to pay 1000 merks in full of all dues. Sir Thomas being charged on this, he suspended on this reason, That, by a supervenient law, viz. Act 26, 1690, the necessity of confirmation was taken away; and as he could not be forced to confirm, so neither to pay the sum due upon that account; and so it became indebitum et sine causa.
Answered,—Whatever might be pretended if he had not entered into an agreement, yet, it being now res transacta, he cannot be liberated; nor does the Act of Parliament rescind or annul any pactions or transactions of parties.
The Lords repelled the reason, and found him liable.
