Certification refused where the Pursuer, his Predecessors, or Authors have acknowledged the Writs called for.
Robert Glendinning of Partoun v. John Irving of Drumcoltran
Date: 28 January 1708 Case No. No 155.
Certification against a principal right was refused, in respect the defender was desired, by a letter from the pursuer, to purchase that right.
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In the reduction and improbation at the instance of Robert Glendinning of Partoun against John Irving of Drumcoltran, for reducing a wadset right of the lands of Borland, granted by the pursuer's father to Mary Maxwell, from whom, and Robert Thomson of Kirkland her husband, when under distress for debt, at the instance of Alexander Christy, Drumcoltran purchased the wadset, and paid the debt, upon a letter from the pursuer, desiring him earnestly to agree with Kirkland anent the Borland, which would be a kindness done to the pursuer. The defender having produced only an extract of the wadset out of the Stewart Court books of Kirkcudbright, the pursuer craved certification against the principal.
Alleged for the defender; The extract cannot be quarrelled for not production of the principal, because the defender had acquired the right at the desire of the pursuer, and to do him a favour, whose letter was not only a homologation of the reality of the wadset, as if it had been disponed with his consent, but also a mandate to advance money for such a right sui ipsius et tertii gratia, the pursuer being debtor for the money; and as the exactest man could not doubt the verity of a debt acknowledged by the debtor, so it was contra bonam fidem to quarrel the same after the right thereto was acquired at his own desire.
Answered for the pursuer; The letter cannot hinder him to quarrel the right of wadset upon pretence of falshood, because hoc non agebatur thereby, that the writer should be bound for the validity of the right to be acquired; and men ought not to be ensnared by such general letters of friendship, which import no mandate, but only what lawyers call ‘ commendation.’ For, as Voet Comment. in Pandect. Tit. Mandat. N. 1. observes, “Mandatum dicitur a datione manus, &c. ac differt. a commendatione in eo, quod qui commendavit non obligetur; L. 12. § 12. L. 8. D. Mandati, Quali commendanti non absimilis videtur qui amicabilem tantum affectionem in negotio gerendo præstitit, L. 10. § 7. D. Eod.”
The Lords refused to allow the pursuer the benefit of certification against the principal wadset, and found the production satisfied by the extract, in respect of the letter recommending to the defender to purchase that right.
