Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Johnston v. Callander of Dorator and Willison
Date: 17 June 1697
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I Also reported John Johnston, Keeper of the Parliament-house, against Callander of Dorator and Willison; where the question was,—If the titles of intromission founded on, though not sustained to defend against restitution, yet were sufficient to infer such a bona fides and probable ground as to assoilyie from repaying the annualrents from the date of the uplifting. The Lords had found Dorator not liable, neither for his neglecting exact diligence, nor to refund these annualrents, in respect of his bona fides. This being allowed a second hearing, it was contended, that the titles produced were all predoneous, and patched up by simulate collusion between Langlands, the tutor, and him; and, it being ignorantia juris, it can afford no excuse.
Answered,—The testament giving up the whole estate, both heritable and moveable, erroneously, this led them all into the same error of a promiscuous intromission; like the testament mentioned in l. 88. sect. 17. D. de Legat. II. 2do. Ignorantia juris, in things that are juris positivi et in apicibus juris, always excuses; as also where one versatur in damno vitando, as Dorator does here: and it is enough to introduce bona fides, that I possess animo dominantis, thinking the goods mine; and, though negotiorum gestores and pro-tutors be liable for accurate diligence, yet Dorator is not in their case.
