Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, Reported By REPORTED BY WILLIAM FORBES, ADVOCATE.

The Dutchess of Hamilton
v.
Daniel Campbell, Collector at Port-Glasgow

Date: 13 February 1706

Click here to view a pdf copy of this documet : PDF Copy

In the action mentioned supra, January 18, 1706, at the instance of Daniel Campbell, collector at Port-Glasgow, against Sir Alexander Anstruther, the Lords having found, that Mr. Campbell's letter did not empower Sir Alexander to enter into a minute of sale with the Dutchess; compearance was made for her Grace, who claimed the benefit of the clause in her favours in the said letter, viz. that she might have the bargain upon such a reasonable consideration as the Lords should modify.

Answered for Daniel Campbell,—The clause in his letter, imports no concession or ground of claim in favours of her Grace, but only verba officiosa, a fair compliment at most, or velleity to treat with her if she were desirous; which obliged him to nothing, far less to dispone an heritable right without any treaty or agreement, at the Lords arbitrement. For the letter was not writ to the Dutchess, nor is it found to liberate Sir Alexander, to whom it was directed. And her Grace, not being bound to Mr. Campbell to accept of the bargain, it is inconceivable why he should be obliged to let her have it: and her now declaring her acceptance signifies nothing; for, if third parties should be allowed to catch at words passingly spoke betwixt others, all common converse would be dangerous and ensnaring. Yea, a letter declaring that the writer was not to pass from a certain verbal communing, was not found obligatory to cut off locum penitentiæ;— January 28, 1663.

Replied for the Dutchess,—Letters are as obligatory as other writs, to justify the receiver as to any thing that follows in consequence thereof;—January 3, 1677, Earl of Argyle against L. of M'Naughton. As for the decision 1663, it concerns not the case in hand ; for there Brown's letter did only express his resolution to adhere to a verbal communing, which could not deprive him of his locus penitentiæ, seeing the bargain was to have been perfected in writ; where as no man will say but Mr. Campbell might pass from a perfected minute, by a line under his hand, in favours of a third party. It alters not the case, that the letter is directed to Sir Alexander, and not to the Dutchess ; for a clause in a writ conceived in favours of an absent third party, is as much their right as if they were present. And Mr. Campbell's letter doth not appear to have been so overly writ as he now pretends; seeing he is careful that his yielding the bargain to her Grace should not be for nothing, but for a consideration, which implies something of more caution and deliberation than his new gloss will admit of.

The Lords found Daniel Campbell's letter did not oblige him to let the Dutchess have the bargain.

Page 99.