Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 LOCUS PŒNITENTIÆ.

The Trustees of Charles Murray
v.
Sir Harry Seton

Date: 21 November 1772

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After various communings between Sir Harry Seton and Charles Murray, collector of the customs at Borrostowness, they landed in this, That, if Charles Murray would resign his office, and lodge the resignation in a friend's hand, and that Sir Harry should succeed to him, within six months after the date of his resignation, he would pay him £3000. Sir Harry hoped to obtain this place through the interest of his friend, Sir Laurence Dundas, with the minister ; and he considered the bargain as advantageous, being about years' purchase. Accordingly Mr Murray, though he did not resign his office, yet wrote a letter to Sir Laurence, declaring his willingness to resign, once within six months, whereby Sir Laurence was at liberty to make application for any friend in his room ; and, on the other hand, Sir Harry agreed to grant a bond to Mr Murray for the money, to be lodged in the hands of two friends of Mr Murray, but under a back declaration, to be redelivered within six months from the date of delivery, in case he, Sir Harry, should not within that space be appointed collector at Borrostowness. At this time the parties were at London ; but the bond, being to be signed by a cautioner in Scotland, was transmitted to Sir Harry's agent, at Edinburgh, for that purpose ; and Mr Murray's two friends, who were to receive it, as above, were also at Edinburgh. Things in this train, Mr Murray died at London, the morning of the day when the bond was to be delivered ; but Sir Harry's agent, not knowing this, delivered the bond some hours after ; and, in a short time after Mr Murray's death, Sir Harry, upon the vacancy of the office by his death, was appointed collector in his room.

The question came, Was the bond due ? Sir Harry suspended a charge upon it, for these reasons :—

Primo, He contended, that the bond was null by the statute of Edward the Sixth, against the buying and selling of offices, which, though originally one of the revenue laws of England, was now to be considered as part of the revenue laws of the United Kingdom.

Secundo, It was unlawful at common law, et contra bonos mores.

Tertio, It was a condition of the transaction, that Mr Murray was to grant a resignation of his office, which, in fact, he never did.

Quarto, That the transaction was incomplete at Mr Murray's death ; he having died at five o'clock of the morning of the day upon which the bond was delivered, so that it was by an error, in fact, that the bond was delivered.

Quinto, That, being incomplete at Mr Murray's death, it could not be made complete afterwards.

Sexto, That the nature of the agreement was such as rendered it not only necessary that Mr Murray should have resigned, but that Sir Harry should be appointed, during Mr Murray's life, and upon the vacancy occasioned by that resignation. But this was not the case which happened : Mr Murray enjoyed the office till he died ; and, upon the vacancy occasioned by his death, Sir Harry succeeded,—none of the communings having ever been made known to the minister, nor any application made to him till after Mr Murray's death. It was even denied that they were known to Sir Laurence.

The Lords, on report of Lord Kennet, “ Sustained the reasons of suspension, and suspended the letters simpliciter.”

They did not particularise the grounds of their judgment. The two first reasons of suspension were mentioned, but rather departed from by the parties ; but, upon the whole, the Lords held the transaction as incomplete at Mr Murray's death.