Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Richard Maitland of Pitreichy v. Gordon of Geicht
1671 and 1676.
Click here to view a pdf copy of this documet : PDF Copy
1671, June 13th.—Richard Maitland of Pitreichy having, in December; 1669, obtained a declarator of recognition against Gordon of Geicht of the lauds of Geicht, thereafter, ex gratia, he enters into a minute with him, by which he obliged himself to dispone to Geicht, at the sight of men of law, the said recognition, and to secure his lands from all possible hazard that might result therefrom; on the other hand, Geicht was bound to ratify some unquarrellable wadsets that Pitreichy had upon these lands, as also to pay him in a certain sum of money for the foresaid communication of his right. Thir articles, it seems, Geicht was unwilling to fulfill, and being required, refused; whereupon Pitreichy raises a summons of declarator of the nullity of the said articles, in respect Geicht has failyied to fulfill his part thereof; in respect whereof, he craves to be liberated thereof, and so reponed to his own place, as if such articles had never been condescended on.
It was alleged,—The summons was most irrelevant, unless they could say, (which was not,) that the said articles contained an irritant resolutive clause in case of not performance; but they containing no such irritancy, there is no man in law or reason will maintain, that such articles will afford any more save an action for implement: and if Pitreichy will turn his libel into an action craving performance, then Geicht pari passu as the pursuer fulfills to him his part of the said obligement, so shall he perform to him, (neither was he ever unwilling;) and what day he takes to produce a valid disposition, he will take the same to pay him his money. Vide infra, No. 209.
The Lord Halkerton inclined to convert it into an action for implement; reserving always to the Lords their consideration of the pursuer's damage and prejudice, and charges he has been at, through the defender's delay of fulfilling the said articles, to be modified by them as they shall find cause. Yet he was to give them the Lords' answer thereon.
Advocates' MS. No. 166, folio 97.
1671. July 5th.—In this cause, (which vide supra, ad num. 166,) it falling to be debated, whether or no Pitreichy might not change and convert his action of declarator of nullity of the minute passed betwixt him and Geicht, into an action for maills and duties against the tenants of the lands of Geicht, as being his own property, he being donatar to the recognition, my Lord Craigie was pleased to give them the Lords' answer thereon: who found, it could not be turned; especially considering that there was none called in the declarator of nullity save Geicht himself; whereas, in an action for maills and duties, the tenants mainly must be called. Yet in regard my Lord Halkerton had never reported the dispute in the said declarator of nullity, therefore the Lords ordained him to hear them over again on these points.
Advocates' MS. No. 198, folio 101.
1671. July 8th.—In the foresaid cause of Pitreichy and Geicht, (which, at the No. 198, was referred to my Lord Craigie to hear,) it was alleged for Pitreichy, That albeit the articles could not be declared null, in regard they contained no irritancy, yet his declarator behoved to stand good, ad hunc effectum, that the whole maills and duties of the barony of Geicht must pertain to the pursuer, from the date of the minute, for all the terms that have intervened since, and in all time coming, so long as Geicht shall be in mora of not fulfilling his part of the said articles.
My Lord Craigie offered to decern the articles to be fulfilled hinc inde, ad hune effectum, that, since they wanted a clause of registration, they might charge upon his decreet; and, in case of not obedience, denounce and registrate at the horn; which being done, will have the same force for annulling the minute that a clause irritant would have: or he would ordain Geicht to pay the sum he stands obliged in to the pursuer, cum omni causa; that is, not only with its annualrent since the date of the minute, but also all cost, scaith, damage, and interest sustained by the pursuer, in default of the defender his delay to perform the obligements lying upon him. Anent the question, whether, in a mutual contract, the failyie of the one to fulfil his part after he is required thereto, operates so much as to liberate the other wholly of the said contract, (which was the case betwixt my Lord Ramsay and my father;) Vide l. 14 and 17, C. de Transactionibus Ferrariens in pract. 36, Ut pacta serventur, et ibi doctores.
See 15th February, 1681, Wood and Shanks. Vide 1. 14, ibique Gothofredum, D. Pro Socio. Vide Nicollaum Mozzium, de Societatis Contractu, p. 633, and the laws there cited.
Advocates' MS. No. 209, folio 103.
1671. July 13th.—In the point taken to interlocutor at No. 209, betwixt Pitreichy and Geicht, the Lords found Pitreichy had right to the haill maills and duties since the date of the minute, and in all time coming, aye and while Geicht pay the sum contained in the said articles; and assign the first of December to fulfil hinc inde each one to other: and, in case Geicht perform not betwixt and then, the Lords will receive Pitreichy to allege the nullity of the articles; and if he fulfil, then the Lords, at that same time, will modify what they truly find to be Pitreichy's damage through the delay.
Advocates' MS. No. 219, folio 104.
1676. July.—In the decreet of declarator of nullity of the minute, passed betwixt my Lord Pitreichy and Gordon of Geicht, about the recognition of Geicht's lands gifted to Pitreichy, in regard of failyie in performance, and which was assigned to the Earl of Aboyne, (Vide supra, July, 1671, Nos. 166, 198, and 209, between the same parties,) the Lords reponed Geicht, notwithstanding the decreet upon the commission of the failyie, and admitted him to the benefit of the said contract, he performing the heads and contents thereof. Which was bene judicatum.
