Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mr William Black, Advocate, v. Dun of Taarty
Date: 19 December 1694
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Mr William Black, advocate, against Dun of Taarty, for recourse of warrandice upon a disposition of a fishing sold by Taarty to Gilbert Black, the pursuer's father. The Lords repelled the first defence, That it being a fishing on Don, it bore that it was intransmissible to any but burgesses and residenters in Aberdeen; in respect the pursuer was a burgher and residenter there at the time of the disposition. But the Lords sustained the second defence, viz. That there could be no regress, because there was no judicial eviction by any sentence of the Lords in January 1693, reducing a contract of communication passed betwixt the cruive and coble-fishers, whereby this fishing, which cost his father 4,200 merks, would not procure him, if sold, 1200 merks. This the Lords found no eviction:—1mo. Because Dun of Taarty was not a subscriber of that contract, though his tenant had the benefit of it as well as others; 2do. This supervenient reduction was casus insolitus et improvisus, qui a nemine prœstatur; and that the words of the disposition, “of privileges used and wont,” could not extend to the benefit arising by that contract, so as, that failing, the disponer should be liable to refund it. Some moved, as this was so irregular and illgrounded a pursuit, that expenses should be modified to the defender. But the Lords forbore, in regard it was clear that eventually the pursuer now was lesed ultra dimidium justi prœtii, and had an ill bargain.
