Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
The Countess of Bramford, Lord and Lady Forrester v. The Earl of Callender
Date: 8 December 1671
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The Earl of Bramford being forefaulted in 1645 for his loyalty to his Majesty, and having L.40,000 upon infeftment, out of my Lord Erroll's lands, the same was assigned by the then States to my Lord Callender, and he accordingly uplifted the same. This forefaulture, as horribly unjust, being funditus rescinded in 1661, per modum justitiæ, and the Earl and his heirs reponed against the same; as also, by an act in 1670, the intromitters being declared liable: upon thir grounds Callender is now pursued by the Countess of Bramford, and her daughter, the Lady Forrester, and my Lord, her husband, for his interest, (who have right from the deceased Earl of Forth,) to repay the foresaid sum intromitted with by him, and the annualrents thereof since that time.
Alleged for Callender, 1mo, He is secure by the act of indemnity declaring intromitters with public monies not liable. 2do, A restitution against a fore-faulture restores to lands, but not to monies where the same is consumed; it being res fungibilis et qaæ usu quasi consumitur, and must be considered not as the money of the Earl of Bramford, but as the money of the States, who acted conform to the power then standing, and ordered their General Commissary to receive the same. And though Callender got it immediately from the debtors, and not from the General Commissary, by which it would seem not to have been redacted in fiscum, yet this being only to spare a telling et per fictionem brevis manus, it was all one as if he had got it from the public; with whose money being once confounded, he was not obliged to take notice whose it was, unless he had been accessory to the forefaulture, which he was not: neither is he obliged to debate the public right whether it was good or not, seeing they had so much of a present right and title by reason of the forefaulture, that was more than sufficient to purge the possession of the money and the simple act of numeration (the same being uplifted by warrant, and without any violence,) from all vitiosity. And he is no more obliged to debate the public's right, than he who has paid to an heir, but whose service is afterwards reduced; or to a man having a decreet which is afterwards annulled: in neither of which cases will the payer be found farther liable. And if intromitters, by virtue of a coloured title, were put to restore, it would stop all commerce amongst men. 3tio, By an act in 1647, Bramford was restored again to his honours, lands, and dignities, but with this quality, that he should never seek these sums which were meddled with either by the public or others having their order. Which restitution he homologated, and so neither he nor his heirs can recur. 4to, The pursuers can have no action, because by the act in 1661, Callender is exonered, at least it is only declared he shall be obliged to relieve Errol in case he be distressed, which case can now never exist, Errol being discharged by act of Parliament in 1670; and so sublata principali, tollitur accessorium.
See the replies to thir allegeances in the informations beside me.
The Lords after a long and full debate, found Callender ought to restore the principal sum, as he who intromitted therewith.
Then Bramford insisted for the annual-rents. Alleged, no annualrents can be paid, because usuræ debentur tantum ex pacto, and there was none here. 2do, Bonæ fidei possessor fructus consumptos facit suos, nee restituere cogitur, in which case Callender is.
Replied,—The sum lifted by him out of Errol's hand was upon annualrent, and so omne turpe lucrum which Callender had upon that account ei est extorquendum, and Bramford's posterity must be redintegrat cum omni causa.
The Lords were unwilling to determine upon the annualrents, but recommended to the parties to see if they could settle betwixt themselves, between and which if it should take no effect, then they should likewise advise the dispute anent the annualrents. At last, when they could not agree among themselves, the Lords decerned for all annuals of that sum owing by the debtors, the time of the forefaulture, and for the annuals thereof since the restitution per modum justitiæ in 1661, and assoilyied from the rest. This will make about the half of the annualrents.
Then Bramford insisted against the Laird of Carse for repayment of L. 20,000 received by him out of Bramford's forefaulture. Alleged,—1mo, He was an infant when it was paid. 2do, It was given for most onerous causes, viz. either for fees and other public service done by his father as Justice-General, or was real lent money to the States, which also they instructed. The Lords found whatever was given upon the account of service must be restored, and therefore decerned for that; but what was given for payment of borrowed money they demurred longer on it, yet at last they found no causes, how just and onerous soever, of sufficient strength to stand against the rescission of that unjust forefaulture, and therefore they involved Carse's principal under that same very fate with Callender's; and sic like, for the annualrents recommended them to agree.
Kinghorne, who got 15,000 merks of that forefaulture as the price of meal, forecasting the horoscope of his affair, and fearing the speit wherein he saw things running, he submitted the difference betwixt him and them to my Lord Chancellor.
