Stipulations in favour of third parties. - Order to pay money to third parties. - Effect to the third party, of voidance of the right by which he had been favoured.
Laird of Renton v. Lady Aiton
Date: 26 June 1634 Case No. No 4.
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A clause in a contract conceived in favours of a third party, albeit not of his knowledge, cannot be discharged by any of the parties contractors, without the consent of him in whose favours it is introduced, if the contract be registrated; for in that case, it is as good as it had been delivered to the said third party, and had become his evident.
Fol. Dic. v. 1. p. 511. Spottiswood, (Contracts.) p. 72.*** Durie reports this case:
1634 June 25.—In a spuilzie of teinds founded upon a right made by John Stuart of Coldingham, and Francis Stuart L. Moriston, and Robert Douglas, to the pursuer of the same teinds; at the time of the making of which right, the pursuer gave a bond to the said persons, authors of his right, that he should never exact more for these teinds, now acclaimed from the Lady Aiton, but only L. 100 yearly; which bond is registrated in the books of Council, and made public; and upon which bond, the Lady Aiton defender, propones this exception, that she could not be found to have committed spuilzie; which exception the Lords found relevant, and sustained it to elide the spuilzie; notwithstanding that the pursuer replied, That this bond containing the foresaid clause, could not defend her, the said clause being conceived in favours of a third party, who was neither present the time of the parties contracting thereon, she not being a party, nor knowing any thing of the bargain, and doing nothing upon it, nor being accepted by her, nor by none in her name, and so behoved to be unprofitable to her, being stipulatio alteri facta, which is not profitable in law; likeas thereafter all the parties authors of the said disposition, and receivers of the bond, containing the said clause, had discharged the same, and all the whole heads thereof, to the pursuer, except the L. Moriston, whereby the same became extinct, as if it had never been made, seeing she was not contractor; which reply was repelled; for the Lords found, that seeing the said bond was registrated, and so made public, the same could not thereafter validly be discharged without the consent, and express deed of that person in whose favours the clause was conceived; likeas the whole persons to whom the same was made, and who disponed the teinds to the pursuer had not at all discharged the same; for if it might have been validly discharged wihtout consent of the third person, (as it was not found) yet all their consents behoved to have been given thereto; and seeing Moriston's consent was not adhibited, who survived long after the discharge, and which is now impossible to be had, he being now deceased, therefore the discharge was not respected, to derogate to the said third person.
Act. Stuart & Nicolson.Alt. Advocatus & Belches.Clerk, Gibson.
Durie, p. 720.
