Condition, when understood purified. - Condition of “being decerned,” includes decerniture by Decree Arbitral.
Hutcheson of Scotstoun and his Lady, v. Drummond of Invermay
Date: 20 January 1697 Case No. No 45.
A bond contained this clause, “that it should be void, if the creditor died without heirs of his own body, before the sum was uplifted.” Found that an action for payment showing the intention to uplift, purified the condition.
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I reported Hutcheson of Scotstoun aud his Lady against Drummond of Invermay, (for payment of 2000 merks contained in a bond granted by Stuart of Rossyth, to Walter Stuart his cousin, and assigned by him to Scotstoun,) as he who had received right to the estate of Rossyth, with the burden of all his debts.—Alleged, The bond bears its own dittay in its bosom; for it is clogged with two conditions and qualities; the first that it shall be void and null, if Walter die without heirs of his own body before the sum be uplifted; the second is, that esto it be paid, yet if Walter die without bairns, and leave as much estate as will pay this bond, then the same is to return again to Rossyth, his heirs and successors; and Invermay subsumed, that Walter deceased without heirs, and the sum being unuplifted, the obligation became void by the first clause.— Answered for Scotstoun, That it must be held as uplifted, because Walter did omne quod in se erat to raise it; for he pursued Invermay for payment, and he advocating the process, Walter died before discussing, and assigned it; so stetit per Invermay, that it was not lifted, and being ejus culpa, non debet lucrari.—Replied, This process was only for constitution of the debt against Invermay passive.——The Lords found his pursuing sufficiently declared his purpose and intention to uplift it; and being delayed by Invermay, it was equivalent as if he had uplifted, so it fell not under the first clause; and quoad the second, (to whom it should return in case he died without heirs of his own body,) it was contended it behoved to return to Invermay, who was the heir of tailzie. ——The Lords found it belonged to Lady Scotstoun, who was Rossyth's lineal heir of blood; and that the heir of tailzie was only heir in a particular subject.—Then the debate arose, if the bygone annualrents could be compensed with the aliment he received in Rossyth's family; and though it was alleged he had that as a servant, and no aliment is due inter majores without a paction; yet the Lords, considering the nature of this gratuitous bond, and that debitor non præsumitur donare, they found the annualrent compensible with the aliment.—The third point was, if his intromissions with Rossyth's victual and money rent, proven by receipts under his hand, were sufficient to make him comptable to this effect, that they may compense against Scotstoun, his assignee; who alleged, That he never having a commission from any of the Lairds of Rossyth, as their Chamberlain, nor any written factory, what he received of the rents was only as their servant, and he is so designed in some of the receipts produced; and this intromission has been upon their verbal orders, and immediately delivered to them, and instantly compted for de die in diem, and so cannot make him liable, else it might ruin all the servants in Scotland.—Answered, Whether he had a commission in writ or not, non refert, for a negotiorum gestor will be liable to compt conform to his receipts; and though it be in re antiqua, yet he ought either to have a discharge, or else some stated accompt, to clear that these intromissions for which he gave receipts, came to his master's use.——The Lords thought the point of a general preparative, and therefore resolved to hear it in their own presence. See 17th Nov. 1665, Howison against Cockburn, voce Presumption; and 25th Nov. 1671, Irving against Falconer, Ibidem.
After a hearing, the Lords found any intromissions, in this case could not exhaust nor compense the bond, but might ascribe in payment of his annualrents.
Fol. Dic. v. 1. p. 191. Fountainhall, v. 1. p. 758.
