Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Dame Margaret Lauder, Lady Pitmedden, v. Sir Alexander Wedderburn of Blackness
Date: 6 December 1709
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The lady, as executor to Mr William Lauder her father, having right to the fee of 4000 merks due by the town of Dundee, the liferent whereof belonged to Eupham Bathgate, relict of Mr Robert Lauder her uncle; and £861 of it coming into the hands of Blackness, and arrested there, my Lady and her husband obtain a decreet of forthcoming against him; decerning him to pay the money to them as fiars; Eupham the liferentrix always renouncing her liferent in so faias concerned Blackness's obligation to pay her, upon my Lord Pitmedden's giving her sufficient security to make punctual payment to her of the annualrent thereof, during her lifetime, at two terms of the year, at her own lodging at Dundee. The relict being required to renounce on a new security, which seemed unquestionably good, that was offered her, she refused on this reason, That she could not be obliged in law to quit the security she had already for any equivalent in place of it, Blackness and she living in one town, and making payment to her in lier own house; whereas she behoved, in the other case, either to send to Edinburgh, or to have one there to receive it, which would be a great inconvenience to her; whereas law had provided remedies in the case of payment, at a special particular place,—tit. dig. De eo quod certo loco; and sect. 31, Instit. de Act.
Answered for the Lady Pitmedden,—Whether the relict, liferentrix, consents or not, she, as fiar of the sum, has the jus eligendi and right to uplift the debt, on securing her interest, which was offered to be done by caution beyond exception, and she was no farther concerned. And the 226th Act 1594 allows fiars to repair liferented tenements, on their finding caution to secure the life-renter who had suffered the tenement to go to ruin or decay. And the Lords have found, where a fiar of a house within burgh inclined to dwell in it himself, the liferentrix must cede the possession, on his finding sufficient caution to pay her the rent it then gave.
Replied,—That only held where the debtor, in the liferented sum, was vergens ad inopiam; for then it was the benefit and concern of both fiar and life-renter, that the sum should be preserved; but here the debtor Blackness's solvency was not questioned.
The Lords, by a scrimp plurality, found the lady, as fiar, might uplift the sum, on caution to pay the liferentrix the annualrent thereof termly; but it behoved to be burgess caution within the town of Dundee, that her present security may not be any way diminished or deteriorated. And their offer to pay her at Dundee was not enough, unless she had a dwelling there to exact it from.
