Scottish Court of Session Decisions

Subject_1 BONA ET MALA FIDES - BONA FIDE PAYMENT.

Antonius Lesly
v.
Lesly of Pitcaple

1744, Feb. 24.
Case No. No. 6.

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Found that Count Charles is bound to denude.—Renit. Strichen, and Arniston, Reporter. 2dly, Found that he is not bound to denude in favour of Leopold, his eldest son,—unanimously. 4thly, That he must denude not in favour of Count Antonius his second son, but in favour of Mr Lessly of Pitcaple.—Justice-Clerk, Royston, and Haining were absent; and Kilkerran, Balmerino, and Murkle, were non liquet; but all the rest were unanimous. But this was reversed in Parliament, and judgment given in favour of Count Antonius.—18th February 1741.

In the case mentioned supra, 18th February 1741, the House of Lords having reversed our decree, and given judgment in favour of Antonius Count Lessly, a question arose about rents uplifted by Pitcaple, in consequence of our decree before it was reversed. The case was, that immediately after our decree, writs of appeal were served in name of Charles Cajuchan, Count Lesly, and Count Leopold, his son, but they neglected to take out a writ in name of Count Antonius, and afterwards for that defect they were allowed to withdraw these writs, whereby nothing was done that Session. Both parties had given factories to Tillifour for uplifting the rents, and he accordingly, after our decree, counted for the rents 1740 to Pitcaple. In December 1741, writs of appeal for all the three were served against Pitcaple, but not against Tillifour, who was no party. In March 1742, Tillifour paid Pitcaple L.110 sterling more of rents, and in April 1742, the decree was reversed, and the Lords sustained Pitcaple's defence of fructus bona fide consumpti as to all preceding the appeal in December 1741, but repelled as to after payment, and sustained Tillifour's defence, “lawfully paid.” I indeed differed as to the first point, but I was alone. 24th February Adhered as to all that Pitcaple received before the appeal; and 13th February 1745 Adhered as to the whole.—(15th February 1744.)