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James Hume of Coldingknows pursues action of reduction against the two daughters, the only bairns alive, of umquhile Alexander Earl of Hume, and against Lord Doun and Lord Maitland, their husbands, for reducing of a sentence obtained by umquhile James Earl of Hume, the defenders’ brother, by the which sentence the contract was reduced, made betwixt the said umquhile Alexander Earl of Hume and Lord Coldingknows, goodsir to this pursuer, and also betwixt the pursuer’s umquhile father, whereby the earldom of Hume was tailzied to his said father and goodsir, and their heirs-male, failing of the heirs-male gotten by the said umquhile Alexander of Hume’s own body; and so the living of Coldingknows was tailzied to the said umquhile Earl of Hume, failing of heirs-male, of their own bodies; and both parties, by this contract, were obliged to do nothing to prejudge that tailzie, or whereby their said successors should not succeed to their said livings, except so far as concerned a certain special sum agreed upon, with the which it was permitted to the parties hinc inde to burden these lands respectivè. This contract being desired to be reduced at the instance of umquhile Alexander Earl of Hume, party contracter, and he dying after intenting of the action, before litis-contestation, and thereafter the same action being tranferred in umquhile James Earl of Hume, his son, and his tutors and curators activè, and in this now pursuer, as heir to his said umquhile father, who was deceased since the intenting of the principal action, and the same principal cause being wakened, and insisted on betwixt the said parties, and also wakened against old Coldingknows, goodsir to this pursuer, against which goodsir the said principal cause was first intented, and who was living at the time of this sentence reductive, which is now craved to be reduced; the reason whereupon the said contract was reduced by that sentence was, because the contract contained a mutual tailzie, as said is, with the foresaid express clause, “that none of the parties should do any thing,” as said is, “to others prejudice therein;” and so that being the final cause thereof, the failure of any of the parties in fulfilling their part, and the contravening thereof, ought to repone the other party against the contract, and put him in his own place against the same; whereupon he subsumed, that Coldingknows had failed, and, since the contract, had sold all his lands irredeemably, and had contracted debts, by the which all his lands might be comprised, and so had rendered himself altogether unable to fulfil his part, which was the final cause of the contract. This reason, in absence of the party, was found relevant and proved, and the contract reduced, and the Earl of Hume reponed against the same; which decreet was now desired to be reduced, after the death of the said umquhile James Earl of Hume, the only heir-male of the said Earl Alexander, who was contracter, as said is, and whereby the condition of the contract began to take effect in the person of this pursuer, the heir of the other party contracter; the reason of which reduction was, that that first reason of reduction was not relevant in jure, for the one party’s failing in his part of the contract was not a reason in jure relevant to repone the other party, and so to dissolve the contract, there being no irritant clause therein, but only that the other party had, in law, action competent against the other party breaker, and his heirs, for implement of the contract, or for damage and interest, specially seeing that mutual tailzie made by Coldingknows (against which it was then first libelled, he had contravened, by burdening or selling the lands, as said is) was not the final cause of the contract, as the reason bore, there being other causes by the said tailzie, viz. that the Earl of Hume made the said tailzie for preservation of the honour of the house of Hume, and the ancient dignity and estate thereof, and that it might remain with the name of Hume, and for great gratitudes done to the Earl by the Earl of Dunbar; and albeit he had subjoined also these words, “for the causes under-written,” in the words of the contract, yet that ought to be understood but as a signification of his thankful mind, and not that the other party’s tailzieing of his lands should have been the only final cause of the Earl’s making of the tailzie, as the reason bears: Which reason being considered by the Lords, they found the same relevant to reduce the first sentence reductive; and found, that the Lords themselves were judges competent to consider of the first reason reductive, if it was then relevant or not, and if it was proved or not, by that contract, that the mutual tailzie was the final cause of the making of the tailzie by the Earl of Hume upon his part or not; and found, that they might discuss that reason now in this process, if it was relevant and proved, (as the Lords, by this first process, had found the same relevant and proved); the finding whereof, seeing it was so found and done in absence of the party defender, the Lords found to be no impediment in this second instance, but that it might be found otherwise, if they should find reason so to do, albeit the same reason did consist in jure; and whereby it might be thought, that that Judge which found once a reason (being in jure) relevant, could not find it again to be irrelevant, albeit that same contract, being considered then by the Judge, was found to prove the mutual tailzie to be the final cause, cannot now be used to prove the contrary, seeing the said sentence, and litiscontestation so finding, cannot hinder to examine and try, in the second instance, if it was well done there; and which the Lords found they might and ought to do, without any imputation to the Judge in the first sentence, seeing it was given parte non comparente, in which course of process, in absence of the defenders, the Judges’ decreets are not so exactly examined as when both parties compear; and the Lords, after mature deliberation, having considered of this reason, and the foresaid first reason in the first instance, they found that reason nowise to have been relevant to have reduced the foresaid contract; and therefore they reduced that sentence reductive; for they found, that the contravening of their part of the contract by this pursuer’s father and goodsir, who were contracters on the one side, (as the reason bears), was no cause to repone the other party to the contract; but the most that in law might follow upon the doing of contrary deeds to the contract, was only to seek implement thereof, or else damage and interest for not implement, and no further; and that a mutual contract, being once perfected, could not be dissolved by a breach done by the one party, but only by consent of both: And also they found, that the foresaid contract, bearing, “to be made for the causes within mentioned,” meaned not that the tailzie made by Coldingknows was the final cause for which the other tailzie was made by the Earl of Hume; therefore they reduced, as said is. This decreet was given, the defenders being absent; for after they had compeared, and proponed some defences, viz. dilatories, that the reason of the summons was eiked, altered, and mended, in substantial points, in respect whereof the procurators for the defenders, viz. the King’s Advocate and Stuart, alleged, that they ought not to answer, until they were of new summoned; and which allegeance was repelled, and a short day, viz. ten days, thereafter, was assigned to them to answer to the summons, and reason as it was mended; thereafter they passed from their compearance, and the sentence was given, the defenders not compearing.
Act. Nicolson & Craig.Clerk, Gibson.
Fol. Dic. v. 2. p. 430. Durie, p. 706.
