Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Mr Alexander Seaton of Pitmedden v. Sir Jo Forbes of Craigievar.
Date: 3 July 1673
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Pitmedden, as executor ad omissa to his goodsire, pursues the Laird of Craigievar, as heir, and upon the other passive titles, as representing his father, to pay to him the sum of 500 merks, and the annualrents thereof, because old Craigievar was bound to his goodsire to cause one Burnet assign him to a bond of 500 merks owing by Seaton of Disblair to him.
Answered,—He was content to fufill the obligement in the terms of his father's bond, and to assign the pursuer to that bond.
Replied,—He could not be heard to purge his mora, and make that offer now, because Craigievar's father was boundto cause him assign betwixt and such a day, which he had never done, and the debtors, in the interim, had become bankrupt and irresponsal; so that an assignation was altogether unprofitable now, et res non erat Integra: and therefore he behoved to pay the sum, loco rei imprestabilis et interesse, nomine damni et moræ; likeas, this defender has acquired the debtor's estate, and sold it, and so may the more fairly pay his debt. Vide L. 4, p. ult. D. ad legem commissoriam; l.12, C. de contrahenda et committ. stipulatione; which gives an excellent reason for it.
Duplied,—Craigievar was not in mora, because never interpellatus and required to ant the same. 2do, The very obligement bears, that the bonds and other writs appointed to be assigned to, were delivered up to old Pitmedden at that time; and so, the writs being in his own hand, sibi imputet, and he was in culpa not to offer them, that an assignation might be drawn thereby: and the impossibility of granting an assignation now, or the ineffectualness of it, was through the pursuer's and his goodsire's own fault, in not debite seeking it, or giving the papers, &c.
Triplied,—The obligement being ad diem, dies interpellabat pro homine, and there needed no other interpellation. 2do, Having given up the writs where to he was to procure an assignation, the law presumes he retained a double of them to draw and form them by; at least, having bound himself to obtain an assignation to them, notwithstanding of the upgiving of them, the law binds him to have required the same to frame the writs by; and which having neglected, find him in mora, and therefore liable in the sum. Argumentum desumi potest ex l. 53, D. de fidei commissariis libertatibus.
The Lords found, notwithstanding of the delivery of the writs, Craigievar was in mora through not granting or obtaining of the said assignation, and that Pitmedden was not bound to interpell him for the same. Vide supra, numeris 47 et 58.
