Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir Donald Bayn of Tulloch v. Nisbet of Dirleton and Sir William Bruce
Date: 23 January 1695
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[See the prior part of this case, page 128 of this volume.]
Crocerig reported Sir Donald Bayn of Tulloch against Nisbet of Dirleton and Sir William Bruce, about the patrons of Mr John Bain of Pitcairly's two mortifications of burses, the one to the college of Edinburgh and the other to St Andrew's. The Lords had found, Though it was ungenteel, et contra bonos mores, to fill up their own names as patrons, yet it was lawful in itself. Tulloch now repeated his reduction, that the writ, empowering them to nominate the patrons of these mortifications, was granted by Pitcairly in lecto.
Answered,—You have ratified the tailyie and mortification, and so can never quarrel it now. Replied,—This commission to name the patrons is posterior to my ratification, and so can never fall under the same.
Duplied,—Though it cannot expressly comprehend it, yet, you having ratified the mortification, you have consequently ratified all that followed thereupon.
The Lords found this ratification could not hinder Tulloch, nor Pitcairly's nearest heirs, whose right Tulloch had acquired, to quarrel the same, as done on deathbed. Another reason of reduction was, that the said commission was never delivered in Pitcairly's lifetime.
The Lords found it needed no delivery; because it bore to take effect after his decease, and so was of a testamentary nature.
