No Restitution till the other Party be restored. - Whether a Minor, who follows a Profession, can be restored ?
La Haddo v. L Ludquharn.
Date: 10 March 1631 Case No. No 154.
A minor restored against a wadset, consigning only the principal sum, although his curator, who, by transaction with the wadsetter, had debursed the annualrents, insisted that they should likewise be consigned.
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The Laird of Haddo's forbears wadsetting some lands to Mr Thomas Davidson redeemable by payment of 5000 merks, and the said Mr Thomas having pursued upon that infeftment the tenants of the lands for payment of the duties thereof; in which cause the L. Ludquharn, curator to Haddo, compearing to defend the tenants, he taking burden upon him for Haddo and the said Mr Thomas, submitting themselves amicably to two of the Lords of Session, who by their decreet decerned Ludquharn to pay to Mr Thomas the said principal sum, together with the annualrent at 10 per cent. for so many terms as he wanted the profit of his money, and ordained him to assign his right to Ludquharn, for his security of the money, to be so debursed by him, and him to be accountable to his minor for the profits of the said wadset land, wherewith he should intromit by virtue of the said Mr Thomas's right, and that the minor should redeem the lands from Ludquharn, by payment of the said sum, and annualrents thereof, which he should give to Mr Thomas, and which accordingly he paid to the said Mr Thomas; after which the minor pursuing reduction, by consignation only of the principal sum, the L. Ludquharn alleged, That no redemption could proceed, except that the annualrent which he debursed was also refunded to him, conform to the said decreet-arbitral, seeing he had profitably done the minor's affairs, by making the lands redeemable from the wadsetter, by payment of the principal sum, and the ordinary annualrents; whereas, if the wadsetter had uplifted the mails and duties of the lands, and which he would undoubtedly have obtained, if the decreet-arbitral had not intervened, the same would have extended to a far greater quantity; so that as he could not have redeemed from the wadsetter, but by payment of his principal sum and annualrents, even so, before they be redeemed from this excipient, he ought to be re-imbursed of that which he has profitably debursed.——The Lords found, That the pursuer needed not consign the annualrents debursed by the curators to the wadsetters, albeit the curator was content to accept the same now, and proponed not the same to cast the order, but that the lands ought to be decerned redeemed by consignation of the principal sum, and reserved his claim for the annualrents to be given in, as an article of the curator's accounts of his intromission with the minor's estate, and there to be claimed by him; but found, That in this redemption the minor could not be compelled to pay the same, albeit that the curator offered present count of his intromission with the duties of these lands, and that he alleged, that in his intromission with the minor's estate he was super-expended; and so the curator, who had acquired the wadsetter's right profitably, was put in a worse estate than if the wadsetter had retained the same, whereby he might have exacted greater profits and duties of the lands from the minor.
Alt. Baird.Alt. Mowat.Clerk, Gibson.
Durie, p. 580.
