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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Gillivray v M'bean. [1755] 5 Brn 833 (2 July 1755)
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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.
Date: M'Gillivray
v.
M'bean
2 July 1755 Click here to view a pdf copy of this documet : PDF Copy
An heritable bond bore a provision of this kind,—That if the creditor should enter to possess, he should account for the victual at the rate of the fiars of the county. Upon this heritable bond the creditor adjudged, and then entered to possess. The question was, By what rule he should account for the victualrent of the lands about thirty years back, during which time he did possess ; whether by the fiars or the current prices? And the Lords found, That, as he had not entered to possess upon the heritable bond, but had taken the advantage of legal diligence, by adjudication, he could not also take the benefit of the stipulation in the contract; and therefore found that he must account by the current prices. This they determined rather upon principles of equity than of strict law, according to which there seems to be nothing to hinder the creditor to take advantage both of the legal diligence and the stipulation in the contract.
The electronic version of the text was provided by the Scottish Council of Law Reporting