Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
David Callander v. Gib
Date: 25 January 1693
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David Callander, servant in the Exchequer, against Gib. The Lords found it was a clear bargain and transaction, whereby Gib took his hazard of an heir, and was in omnem eventum to pay 1000 merks, whether the gift proved effectual or not; and that it was emptio spei, and a bargain per aversionem et jactus retis, whereby Gib took the right talis qualis; and as he had the prospect of gain, so also he undertook the hazard. Some of the Lords were for sustaining those defences as relevant to assoilyie Gib, that he intimated to David Callander, before his expeding of the gift, to desist and forebear, in regard there was an heir appearing, and offering to serve heir to Neil, whose gift of ultimus hœres they were taking. Others were for trying that point of fact before answer; but the plurality determined against it, in regard by a clause in the contract, obliging them to concur if any heir should appear, it seemed that case was under view and provided for. Some moved to supersede execution for the 1000 merks, till the event of the reduction raised of the heir's service on the head, that he had no contingency of blood to the defunct.
