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Scottish Court of Session Decisions >>
Graham of Hiltoun v The Heritors of Clackmannan. [1664] Mor 10164 (13 July 1664)
URL: http://www.bailii.org/scot/cases/ScotCS/1664/Mor2410164-004.html Cite as:
[1664] Mor 10164
Land-tax not debitum fundi, and therefore not good against singular successors.
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Graham of Hiltoun having obtained a decreet against the Heritors of Clackmannan, for a sum of money imposed upon that shire, by the committee of estates; the Heritors of the shire have raised a review, and alleged, that this decreet being obtained before the commissioners, in the English time, he has liberty to quarrel the justice thereof, within a year, conform to act of Parliament; and now alleges that the said commissioners did unjustly repel the defence proponed for singular successors within the said shire, that they ought not to be liable for any part of the said imposition, having acquired their rights long after the same, and before any diligence was used upon the said act of the committee. It was answered, that there was no injustice there, because this being a public burden imposed upon a shire by authority of Parliament, it is debitum fundi, and effecteth singular sussessors, especially seeing the act of the committee of estates was ratified in the Parliament 1641; which parliament and committee, though they be now rescinded, yet it is with express reservation of private rights acquired thereby, such as this. The pursuer answered, that every imposition of this nature, though by authority of Parliament, is not debitum fundi, but doth only effect the persons having right the time of the imposition, whereanent the mind of the late Parliament appeareth in so far as, in the acts thereof, ordaining impositions to be uplifted during the troubles, singular successors are excepted. It was answered, exceptio firmat regulam in non exceptis, such an exception had not been needful, if de jure singular successors had been free. It was answered, many exceptions, though they bear not so expressly, yet they are rather declaratory of a right, then in being, than statutory, introducing a new right.
The Lords found singular successors free, and reduced the decreet pro tanto.
