Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. VIII.
Mala Fides induced by Process, whether it will take place from Citation, Litis-contestation, or Decree.
Laurie and Husband v. Spalding
Date: 21 June 1769 Case No. No 43.
A bona fide possessor was found accountable from the date of an interlocutor of Court, adhering to the interlocutor of an Ordinary: which was finally affirmed on appeal.
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Mrs Margaret Laurie, and Andrew Sloan Laurie, her husband, having prevailed against Alexander Spalding of Home, in their reduction of the sale of the lands of Ervies, made by James Laurie, the heir of entail in possession for the time, as stated, 24th July 1764, Fac. Col. No 140. p. 324. voce Tailzie; and the judgment having been affirmed in the House of Lords, a question arose, From what period Mr Spalding was accountable for the rents?
Pleaded for the pursuers: The defender must be accountable from the date of the decree, that is, from the date of the Lord Ordinary's interlocutor, which was adhered to by the Court, and affirmed in the last resort.
When the judgment of an Ordinary is altered, a new interlocutor is pronounced, which can have effect only from its own date. But the case is different, where the interlocutor is adhered to: There the Court refuses the petition, and adheres; they adhere simply, and with all the qualities attending the interlocutor, particularly as to its date, in which respect, it is considered in the same light as if no petition had been presented.
Answered: The defender is accountable only from the date of the judgment of the House of Lords. His bona fides cannot be held to have ceased at any earlier period, unless it could be shown, that the original citation was sufficient to interrupt it. Bona fides is excluded by the conscientia rei alienae; but, as the question was of too doubtful a nature to allow the presumption that such consciousness was induced by the citation, so there is real evidence, that the defender did not entertain it during the dependence; otherwise he would not have submitted to the expence of litigating the question, both in this Court, and in the House of Lords.
‘The Lords found, That the defender is bound to account for his intromissions with the rents of the lands, from the term of Martinmas 1764, being the term subsequent to the interlocutor of the Court, adhering to that of the Lord Ordinary.’
Act. G. Ferguson.Alt. Wight.
Fac. Col. No 44. p. 347.
