Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Viscount of Tarbet, and Creditors of Sinclair of May, v. Provost Cuthbert's Son
1694 and
1695.
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1694. July 19.—In the ranking of the Creditors, it was objected against Cuthbert's apprising, That it was null, at least ought to be restricted, in so far as it is made up of most exorbitant penalties and failyies; for May having borrowed 2600 merks from him, he had inserted 1300 merks of penalty in the bond, which was highly gross and usurious. 2do. He had taken a bond apart of £1000 Scots, if May did not relieve him betwixt and a precise day. 3tio. Having put a caption in execution against May, he took a bond of presentation, under the pain of 500 merks, to present himself within such a definite time; and, without declaring thir failyies were incurred, he comprised for them all, extending to 3300 merks.
Answered,—They were all conventional penalties, depending on a liquidation and consent of the parties: they could neither be quarrelled by the party himself nor his creditors.
The Lords, in regard the estate was so overburdened with debt, and that the other creditors offered to quit all their penalties and expenses, therefore they cut off the £1000 and 500 merks of undeclared penalties; and, as to the 1300 merks of conventional penalty in the bond, they restricted it to the usual modification in such cases, viz. the fifth part of the principal sum; and declared the comprising should subsist as a sufficient security for that, together with the principal sum and annualrents. As to the modifying and restricting penalties in bonds, the Lords have been always sparing and tender; as appears by the decisions, 20th July 1678, Morrice; and 21 st January 1679, Irvine.
Vol. I. Page 635.
1694. February 1.—The competition between Mr Rory Mackenzie and Cuthbert, upon Sinclair of May's estate, mentioned 19th July 1694, was reported. The question was, If an improper wadset was sufficiently clothed with possession, 1mo. By the back-tacksman's possession; 2do. By the reservation of a liferent. If it had been the granter of the wadset's liferent, there would have been no doubt in the case; or, if this clause of reversion had been the only constitution of the liferent, there would have been more to say for clothing the base infeftment with possession: But it was a reservation of the liferent to a third party. There were several decisions cited from Hope's Minor Practicks, tit. Of Base and Public Infeftments,—where they may be clothed vel per constitutum vel per usufructuarium; also 13th February 1624, ———; 2d July 1625, Raploch; 8th July 1626, Turnbull; 17th November 1627, Clackmanan; 18th March 1631, Clackmanan. And the 105th Act, 1540, seems only to brand base infeftments with simulation where they are inter conjunctas personas, but not inter extraneos. But, whatever was the causa impulsiva of the act, our law and custom has extended it since.
The Lords ordained this point to be argued in presence.
Vol. I. Page 665.
February 14.—The case, mentioned 1st current, between the Creditors of Sinclair of May, being heard in presence,—the Lords abstracted from the debate, How far a base infeftment is either clad per constitutum vel per reservationem ususfructus: because a clearer nullity was proponed against Cuthbert's charter and seasine proceeding on his apprisings; viz. Smith of Braco's wadset is confirmed by Richard Mackenzie, Bishop of Murray, on the 20th of April 1664: Cuthbert's charter from the same bishop and his chapter is dated the last of March and 27th April 1664; and yet the seasine taken thereon is dated the 14th April; but bears, That the charter, its warrant, was only subscribed on the last of March and 27th April, so it was before the last date of its warrant; which made it not only null, but false, and gave preference to Braco's wadset, which was confirmed betwixt the first and the second date of the charter; for it seems, when the Bishop signed on the last of March, there were few of his chapter present, and that occasioned it to have two dates. And the Lords found it was actus incompletus et inchoatus till the subscription of the whole was obtained; and that the last date was the ultima manus; et nil putamus factum quamdiu quid restal agendum. And, though it was offered to be proven that a sufficient number of the chapter signed with the Bishop before the taking of the seasine, yet the Lords preferred Braco's confirmation; because the seasine was prior to the charter's last date, its warrant.
