Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
George Pitcairn, Commissary of Dunkeld, v. Sir Thomas Dalziel of Bins
Date: 17 November 1698
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General Dalziel dying, and leaving a considerable moveable estate, a competition arose betwixt the Commissaries of Edinburgh and Dunkeld, who should confirm his testament; and Dunkeld being preferred by a decreet in foro, Sir Thomas Dalziel of Bins, his son, did enter into a minute of contract with Mr George Pitcairn, Commissary of Dunkeld, in August 1688, by which he took him obliged to confirm it when required; and he became obliged to pay 1000 merks in full of all dues. Sir Thomas being charged on this, he suspended on this reason, That, by a supervenient law, viz. Act 26, 1690, the necessity of confirmation was taken away; and as he could not be forced to confirm, so neither to pay the sum due upon that account; and so it became indebitum et sine causa.
Answered,—Whatever might be pretended if he had not entered into an agreement, yet, it being now res transacta, he cannot be liberated; nor does the Act of Parliament rescind or annul any pactions or transactions of parties.
The Lords repelled the reason, and found him liable.
