Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Major Biggar
v.
The Laird of Niddrie

Date: 15 November 1672

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Major Biggar, having charged Niddrie for payment of a bond, wherein Niddrie was cautioner for Keith of Edmistoun to the Laird of Wolmet, for 7000 merks; given, upon arbitrament, for the mutilation of Wolmet's hand; and bearing a provision, that, before payment, Wolmet should grant a letter of slains, and procure a remission to him;—which being now procured, and Major Biggar having right to the bond, charges Niddrie; who suspends; and alleges, He ought to have retention of a part of the annualrent, conform to the Acts of Parliament 1646, 1647, and 1648. It was answered, That some of these Acts did bear no retention, unless the annualrent had been paid within the year. 2do. That all these Parliaments were rescinded. It was replied, That the not-payment of the annualrent, within the year, could only be understood when the annualrent was due to be paid in these years; but this being a conditional obligation, that payment should be made upon delivery of a letter of slains, and a remission, which not being obtained, nor offered within these years, the debtors were not in mora; and, though these acts be annulled, yet there is a salvo of the rights of private parties arising thereby. It was duplied, That there was no distinction of obligations in the acts, whether pure or conditional, and that the condition did only affect the principal sum, and not the annualrents. The Lords found, That the condition affected both; and that retention was due, seeing the debtor; was not in mora, in payment of the annualrent.

Vol. II, Page 117.