Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HERITABLE AND MOVEABLE.
Subject_3 The annualrents due on a decreet of adjudication go to the heir, and not to the executor of the adjudger.

Arthur Sinclair
v.
Barbara Baikie

Date: 23 December 1785

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[Faculty Collection, IX. 377; Dictionary, 5545.]

Monboddo. I never could satisfy myself as to the justice of the decision in the case of the Creditors of Clapperton, 1738: [and yet, in the case of Oughterlony, 1772, when that decision was objected to at the bar, he defended it well, and said it was not given on subtleties, but on principles.] It was well altered by the House of Peers, in the case of Oughterlony. To make our law consistent, we ought to adopt that judgment. [On being informed that the House of Peers had given no such judgment, he acquiesced.]

Braxfield. The only point under the Ordinary's consideration was, whether the annualrents on the adjudication are moveable or heritable? This point was solemnly determined in 1738. It is said to be a single decision. True,—because the point was understood to be fixed. But the case has occurred five hundred times. No instance can be given of a nearest in kin taking up annualrents of an adjudication by confirmation. Lands are adjudged to creditors in payment of principal, &c.—all accumulated. The land is the creditor's, though the debtor has a power of redemption. If a creditor should enter into possession and bring an action of maills and duties, the rents in the hands of the tenant would be moveable at the death of the creditor. But if the creditor does not enter into possession, and only rests on his legal right as adjudger, the whole will be heritable, and the annualrent, as well as the principal, must be paid as the redemption-money for the land. The heir only can discharge. The case of Oughterlony, 1772, does not contradict the decision 1738: it went on a presumed declaration of will.

Eskgrove. I considered this point as so well established that I did not much inquire into the grounds of it. I was lawyer in the case of Oughterlony. In the House of Peers we did not controvert the point of law, except a little for form's sake. The argument proceeded on the specialties of the fact and the declaration of will to create a division between principal and interest.

Justice-Clerk. Had the decision 1772 altered the law, we should have had it mentioned daily at the bar, and it would have had a constant effect in settlements.

On the 23d December 1785, “The Lords repelled the grounds of compensation;” altering the interlocutor of Lord Gardenston.

Act. D. Smyth. Alt. W. Tait.

Lord Gardenston absent. [The opinion which he gave in the case of Oughterlony, 1772, was directly the reverse of his interlocutor in this case.]