Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Westgairth and his Factor v. Michael Seaton
Date: 7 December 1678
Click here to view a pdf copy of this documet : PDF Copy
Westgairth, an Englishman, and his factor, charge Michael Seaton in Burntisland. The Lords sustained compensation upon Westgairth's ticket of receipt of the potashes; albeit it was alleged that the price of them was not liquid, nec constabat what kind they were of, there being some potashes near the double rate better than others. Yet the Lords received it, because de proximo poterat liquidari, L. ult. C. de Compensat. And named Bailie John Hall, and Robert Douglass, soapboiler in Leith, to depone what the cask or barrel of potashes at that time was worth; and declared they would modify accordingly: which is a very rational method in such cases, and they followed it in valuing the goods of the Calmer ship, &c.
Vol. I. Page 27.
Anent Ministers' Stipend, payable furth of Baronies.
I was at this time informed of a case that happened, in 1666, to be decided betwixt the Creditors of Balcomie, thus:—A minister has a decreet of locality, appointing so much of his stipend to be paid furth of such a barony, it being then all in one hand. It comes thereafter to be dismembered, and in sundry hands. The minister pursues one of them for the stipend due furth of the whole.
He Alleged,—He was only liable pro rata portione, conform to his teinds, and that the most he could be obliged in was, dedere ipsa corpora of the teinds; for stock pays not ministers' stipends. Yet it is affirmed, the Lords found him liable in solidum, reserving his relief against the rest for their proportional possessions; since the minster ab initio had to do with but one: and if, ex post facto, by alienations unknown to him, and without his consent, it came to be divided, he who is persona in jure favorubilis, must not be distracted from his function to convene all: and the whole barony was made liable by decreet of locality, and so unaquaque gleba seribat; and the stipend was in this like the soul, tola in tola, el tota in quabibet ejus parte. And such a quantity being imposed on the barony, it was without respect to the teinds more than to the stock; and, in this case, both were confounded and consolidated together. Yet, in law, the trirds soem to be the proper and specific subject-matter which can only be affected with ministers' stipends. Act 10, Parl. 1567. See Durie, 20th Dec. 1622, Preston.
