Scottish Court of Session Decisions

Subject_1 TAILZIE.

Earl of Murray
v.
Ross of Balnagowan

1744, Jan. 25.
Case No. No. 22.

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Dun thought that Balnagowan could discharge Mr. Francis Stewart of the limitations. Kilkerran differed, but thought there was no evidence of Mr Francis's acceptance. I also differed from Dun, but differed also from Kilkerran, and thought acceptance presumed, that there was no evidence of repudiating, on the contrary evidence of actual acceptance. But I doubted, if there was diligence for the wadset sums, and Mr Francis failed to relieve him, there might not lie reduction causa rum secuta. The President thought that no man could by any tailzie gratuitously bind himself to his heirs not to alter, that if it is a contract betwixt two parties, or an onerous cause, the parties contractors jointly may always alter. Arniston in the abstract case differed from the President, and thought a man might bind himself as well as his heirs, and in a fee disponed with these conditions the consent of the disponer signifies nothing, and those conditions are qualities of the fee, and in so far stronger than personal contracts, though even these may be conceived so as the parties cannot alter. He also thought the law implied an acceptance, and here there was actual acceptance, but thought it was a settlement strongly quarrelable on the head of imposition, and that was strong reason for Mr Francis making the transaction 1706, and so was the return, and Mr Francis had power to transact upon that; or 2dly, it may bear the construction that it was intended as a trust. The question was, Whether the two jointly had a power to alter? and it carried they had power, five and President to four. Strichen and Arniston did not vote. Leven retired. Balmerino did not vote. Pro were Justice-Clerk, Minto, Drummore, Dun, Monzie. Con. were Royston, Kilkerran, Murkle, et ego. 17th November 1743.

25th January 1744,—The Lords adhered by a great majority. Arniston gave his opinion that the original settlement in favours of Mr Francis Stewart was a trust, and not intended to be a final settlement, and therefore adhered. Kilkerran was also for adhering because he thought there was no evidence of Mr Francis Stewart's accepting. Murkle was in the Outer-House.