Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sir Jo Young of Leny v. Isaac Brand
1672.
December.
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In the same month of December 1672, in a competition between Sir Jo. Young of Leny and Isaac Brand, baxter in the Canongate, about twenty-eight bolls of wheat, of the growth of the lands of Grothall, once appertaining to Mr. Jo. Smith, alleged sold by the said Mr, Jo. to the said Isaac, and who obtained a decreet against William Young, tenant of these lands, upon a pretended promise made by the said William to deliver the said bolls to him: this promise the commissaries admitted to be proven by witnesses. And which twenty-eight bolls were also acclaimed by the said Sir Jo. as having best right thereto, because he stood infeft publicly in the said lands of Grothall near a year before the time of the said pretended sale or promise of delivery, and had also obtained a decreet against the tenant before the Sheriff for payment of his said farm to him. Both parties contending that the tenant behoved to deliver the bolls to them; and particularly Isaac Brand contending the tenant must answer him whether he be found liable to Lenie or not, seeing he had him personally bound to him, and he had followed his faith, and paid the price of the bolls to Mr. Jo. Smith, at the time of the tenant's promise, which otherwise he would not have done, and the tenant must blame himself for entering in any such agreement, seeing he therein followed the faith of Mr. Jo. his master as to any hazard he could incur there-by.
The Ordinary upon the bench inclined to sustain this against the tenant; but they having craved the Lords' answer, the Lords found that tenants should not be liable in double payment of their duties in the general, and that this tenant could not be bound by his promise to the said Isaac, esto he had made one, if so be it should ex eventu appear Sir Jo. Young had a better right to the said wheat than he or Mr. Jo. Smith his author had, who was then denuded in favours of Lenie; (though it is pretended the same was not then made public, but was a mere latent and clandestine right;) and, therefore, having secured the tenant, they ordained the parties competing to dispute which of them had best right.
Which interlocutor, as it was most just in itself, so it is most agreeable to the constant strain of former decisions, whereby the Lords have oft found, though tenants have given bond for their duties, either to their master, or to a third party, his creditors, at their master's order, and their master chance either to be denuded of the property, or a third party by arrestment or otherwise, to these duties, such bonds could not be obligatory against the tenants granters; which they granted allenarly intuitu of the duties they were owing, which being evicted aliunde, undoubtedly the bonds ob cessantem causam must also cease and fail.
In the debate betwixt the parties, it was objected, that Isaac Brand's decreet was intrinsically null, and the commissaries had committed iniquity in finding the tenant's promise probable by witnesses. Answered, that it is true promises et nuda pacta, quæ in nuda emissione verborum consistunt, and so can only be interpreted according to the meaning of the parties who made them, are only probable scripto vel juramento, seeing they may be affected with qualities and conditions quæ sub sensus non cadunt, and so whereof witnesses may be ignorant; but here they were not in that case, but in the case of a pactum ex incontinenti adjectum emptionis contractui, and so was pars contractus et sapiebat ejus naturam, being accessory thereto, and as the bargain of sale is probable by witnesses, so is this promise depending thereon, and being a complex transaction, and consisting in acto cadente sub sensum, which might be very well known to witnesses and who have deponed already thereon, and against which there was then no reclamation, and so is competent and omitted. Replied, it is confessed, where a bargain is made between two, one sells and promises to deliver the victual, the other promises to pay the price; there, because the promise of delivery is in consequence of the bargain, it may be proven by witnesses: but here Mr. Jo. Smith sells the victual; a third party, viz. the tenant, promises to deliver it, and not Mr. Jo.; certainly, though Mr. Jo.'s bargain be probable by witnesses, yet the tenant's promise (who made not the bargain, and is none of the principal parties contractors, but tantum incidit in negotium,) cannot be proven so. Vide 19th November 1679, Lindsay and Crighton.
I know not if this debate got any decision; but, in defence of the Commissaries' decreet, there is in the informations a late practique cited, wherein the Lords, in a case between one Archibald and Syme, found a promise to see a wright paid for some work wrought to a third party probable by witnesses, because it had a dependance and connexion with a contract of location, whereof it appeared to be a part; and which decision seems to meet this in hand very near. Vide, supra, No. 329, in February 1672; infra, No. 429, in November 1673, Syme against Inglis.
