Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Elizabeth Fife, Relict of Mr David Gray, v. Mr William Clerk, Advocate
1693 and
1694.
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1693. February 9.—The Lords found it was pars contractus and a synallagma; and that Mr David Gray's representatives ought to implement and fulfil to Mr William, as well as he to them: but found condictio causa data causa non secuta took not place in this case, so as to free Mr William, on their not delivering to him the grounds and warrants of that apprising; but that this being factum imprœstabile, in place thereof succeeded damnum et interesse: and therefore ordained Mr William to condescend on the damage he sustained through the want of these writs undelivered to him. For the Lords considered that the apprising was led but against a liferentrix; and that, in Buchard's improbation, he had suffered certification to pass, through not producing the comprising and other writs he had in his hands.
Vol. I. Page 557.
1694.January 9.—Philliphaugh reported Elizabeth Fife, relict of Mr David Gray, against Mr William Clerk, advocate, mentioned 9th February 1693. The Lords, having ordained Mr William to condescend on the damage sustained through his not getting up from Mr David the grounds and warrants of Hogan's apprising. And he having accordingly given a condescendence in several particulars, the Lords repelled the same: in regard the comprising was only led against Miller, a liferentrix, and Mr William peaceably bruiked the liferentlands during her life, (though he ascribed it to the gift of her escheat;) and that he had other comprisings to have defended by, and yet he suffered certification to pass against them.
