Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Bannantyne
v.
Irvine

Date: 5 January 1675

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In a reduction, at Bannantyne's instance, of the lands of —, ex capite inhibitionis, against Irvine, who had a right of liferent granted to her by her husband, who was heritor of the said lands, for reducing her liferent;—It was alleged, That Bannantyne's inhibition could be no title to pursue a reduction; because, being raised upon a personal contract for a sum of money, and served against the whole estate of the debtor, who had disponed several parcels of that estate to other creditors; it was offered to be proven that these creditors did pay several sums of money to Bannantyne, whereupon he did consent to their right, or discharged the inhibition; which sums of money ought to extinguish so much of the debts and bonds whereupon inhibition was served.

It was replied, That the defence ought to be repelled, unless it were alleged that any sums of money paid to him by the purchasers of these particular lands, could be imputed to the payment of any part of his debt; and that his receipts and discharges of the inhibition did bear that that was the cause thereof; and that he had discharged so much of the debts: whereas the most it could import was, that he should not trouble these particular rights by his inhibition; and, in effect, what he received was but inconsiderable, et pro redimenda lite; which was lawful to him to do, but prejudice to affect the lands with the inhibition.

The Lords did find the defence relevant, notwithstanding of the reply, upon these reasons;—1st. That a creditor having a certain right, which in law could not be quarrelled, nor any process intented but for questioning that right; any sums of money paid to him could not be ascribed to that cause, that they were given pro redimenda lite; and therefore, unless he could ascribe the payment for some other cause, they ought to be ascribed for payment of so much debt, as being indebite solutum. 2d. If this should be sustained, it would open a door to a general prejudice and suffering, by all debtors and others having right from them; seeing the whole lands which were under inhibition, being divided and sold in parcels to many purchasers, the creditors getting several sums, which might near amount to his whole debt; if, notwithstanding, he should have right to affect the rest who did not agree with him, nor the common debtor, who is bound in warrandice; then he would have right to double payment; which is against the principles of law,—Nemo potest exigere plus quam debetur: Against which law provides, that there is condictio indebiti; so that unless the creditor, who served inhibition, could attribute his payment of any part of his debt to a just and lawful cause, besides his interest as creditor; by a necessary consequence that just and necessary principle of law would be evacuated; and debtors, whose cases are always favourable, would be ruined by the contrivance of creditors who could pretend no loss.

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