Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

John Hay of Mountcastle
v.
Lady Lucia Hamilton and the Creditors of Mountcastle

Date: 23 January 1677

Click here to view a pdf copy of this documet : PDF Copy

In a reduction of a bond of 4500 merks, granted by George Hay of Mountcastle, and John his son, as cautioner to the Earl of Abercorn, and assigned to the Lady Lucia, and of a decreet of suspension following thereupon, in anno 1658, by the English Judges; whereby, they finding that the bond was conditional, upon the procuring an infeftment from the King, as superior of the lands bought from Mountcastle, which were held formerly of Duke Hamilton; which being factum imprestabile, they did deduce 2000 merks of the sums due, and decerned for the superplus. The reason of the reduction was, that the decreet was most unjustly given; because, albeit there was a charter offered by the Protector during the late usurpation, yet, before the decreet, the Duke and Duchess of Hamilton being restored, who refused to resign the superiority, and as yet doth refuse, the bond was null, as being causa data causa non secuta; and therefore the decreet, finding the letters orderly proceeded, was most unjust, and the Lady Lucia ought to count for the whole rents intromitted with, by virtue of the comprising following upon that decreet.

In this process compearance was made for the creditors of Mountcastle, whose rights she had reduced upon an inhibition served against him, or any other who had given her bond or security, and so were forced to agree with her, and pay her what was contained in her decreet; for which she, having assigned her comprising to Mr Archibald Fleeming, who did dispone the same to the creditors, and which disposition Mountcastle had ratified; and so it was alleged for the Lady and the Creditors, That the reason of the reduction was noways relevant; 1st. Because the decreet of the English Judges was not only never recovered debito tempore; but likewise was in itself most just, and could never be reduced; because the bond granted by Mountcastle, being for a part of the price of the lands sold, albeit it did bear that condition to obtain a resignation from Duke Hamilton, to be holden of the King, and that the Duke, during the usurpation, and since the King's restoration, doth altogether refuse —loco facti imprestabilis succedit damnum et interesse; and the sum deduced being more than a year's duty, which the superior could only crave if he had been charged upon a comprising, which did supply the condition.

It was answered for the creditors; 1st. Because all their bonds and securities being reduced by a decreet of the Lords, ex capite inhibitionis; they were forced to agree with the Lady, and pay her the whole sums that were due to her; whereupon, having gotten a right ratified by the pursuer, he could never quarrel their rights. 2d. The pursuer had concurred with Lady Lucia Hamilton to reduce their rights, and had consulted her advocates and clerks, and so was in pessima fide.

It was replied to the first, That the ratification made, by the pursuer, of the creditors' rights could not prejudge the reduction; because, when he subscribed the same, he was lying prisoner in the tolbooth, and had been prisoner for the space of a whole year and more, during the time of the surcease of all justice and government, before the King's restoration, when there was no remedy, by a suspension or act, to be set at liberty. And, as to the second, it wras denied that ever he did concur with the Lady to reduce the creditor's rights.

The Lords, having considered this case, and finding Lady Lucia's comprising to be long since expired, and so would take away the right to the whole estate, did sustain the reduction; but so that the comprising should be effectual for the true sums due her by the decreet, and to the creditors who had gotten a right, notwithstanding of the ratification of the creditors' right, so that Mountcastle might redeem upon payment thereof: but likewise, they found, That it was relevant for them to prove that Mountcastle did concur with the Lady to reduce their rights, by informing and agenting; which being proven, that their right should stand as to the whole sums due to them, until they were redeemed.

Page 619.