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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hepburn v M'Lachlan. [1751] 2 Elchies 437 (22 January 1751)
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Cite as: [1751] 2 Elchies 437
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[1751] 2 Elchies 437
Subject_1 PERSONAL AND TRANSMISSIBLE.
Date: Hepburn
v.
M'Lachlan
22 January 1751
Case No.No. 2.
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In 1745 the Laird of M'Lachlan being sent with a party to East Lothian to levy Cess for the Rebels, and Hepburn of Kingston refusing to pay, M'Lachlan took him prisoner, broke open his cabinets, where he found L.740 sterling in cash, and took it away, and afterwards sent to him, at least sent to Congalton for him, the young Pretender's bond for the money, payable when he should arrive at St James's;—and M'Lachlan was afterwards killed at the battle of Culloden, and therefore not attainted of treason;—and now Scot Hepburn, heir and executor to Kingston, sued M'Lachlan's heir for the money, and a proof being led, the defence at advising was ex parte rei mere penalis, and therefore non transit in hæredes. But the Lords unanimously repelled the defence, and found him liable not only for the principal sum, but also for interest and expences. Vide intere cosdem voce Pactum Illicitum.
The electronic version of the text was provided by the Scottish Council of Law Reporting