Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Euphame Seton v. Bernard M'Kenzie
Date: 29 June 1698
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I reported Euphame Seton, relict of John Robertson, and now spouse to Bailie Gilbert Fife, against Mr Bernard M'Kenzie, for repetition of two years' stipend paid by the said Robertson, her first husband, when factor for the estate of St Germains, in respect they have been forced to pay the same stipend over again to Mr Mungo Watson, minister at the new erected church at Gladsmuir.
Alleged,—There could be no repetition, 1mo. Because qui suum recipit condictione nontenetur; and he had right, because he had preached these two years at the church of Tranent on the call and invitation of some of the parishioners, (but not the Presbyterians,) as also had a right to the stipend 1691, from Doctor Gartshore, the incumbent; and to the former year 1692, he had right, by a gift from the Lords of the Treasury. 2do. Esto the minister of Gladsmuir's right were better, in respect of the dismembration of the lands of Greendykes from Tranent kirk, and the union and annexation of them to Gladsmuir kirk; yet John Robertson's heirs or assignees cannot repeat, because you knew of Mr Mungo's right before you paid me, and yet took your hazard; for his decreet of locality is long prior to the discharge, and wherein you were called as a defender; and it cannot be called indebite solutum et per errorem, seeing it was done scienter, et cujm per errorem dati est repetitio ejus consulto dati est donatio; et qui sciens indebitum solvit, is donare prœsumitur.
Answered,—However this might take place where a proprietor pays, yet the brocard cannot hold in a factor or negotiorum gestor for another.
The Lords repelled the defences, and found him liable to restore.
