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Scottish Court of Session Decisions >>
Robert Stewart of Innerwhat, v The Master of Salton. [1692] 4 Brn 37 (30 November 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Brn040037-0080.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Stewart of Innerwhat, v. The Master of Salton
1692.
November30 and
December30.
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Nov. 30.—Robert Stewart of Innerwhat, messenger, contra the Master of Salton; the Lords found the letters not obligatory upon the Master to pay the sum; but that they imported thir two things; 1mo, That he ought to have large damages modified to him for his expenses. 2do, That the Master ought not to protect his grandfather's person, nor his liferent against this debt of Messie's, by the gift of the liferent escheat, or any other right standing in his person.
Vol. I. page 525.
December 30, 1692.—Robert Stewart, messenger, against the Master of Salton, mentioned 30th Nov. 1692. The Lords having considered the condescendence of his damage given in, they inclined to think the sum was included, and due nomine damni; but in regard they had already found the letters not obligatory on the Master to pay the sum; therefore they declared the import of the letters to be this, that he should not make use of the gift of his grandfather's liferent-escheat, or any other right in his person, to exclude or debar Stewart from payment. For having promised to endeavour his payment, he could not obtrude any right in his person to obstruct it; and found if he had hitherto stopped his access to his grandfather's liferent-lands, then he should be simply liable, and also found him liable by the letters in quantum he was lucratus by the sale of Auchirie's, above what paid Jameson of Parkmur's debt; some inclined to make him simply liable, because by the gift of escheat he had intromitted with more than would pay this debt of Mr Andrew Massie's; but the Lords by a plurality made it only a non repugnantiu, and that the bygone were fructus bona fide percepti. But even as to the liferent in time coming, those in the back-bond may say, they will not let the rents appointed for their payment be misapplied to Stewart's debts, and the grandfather may die before a second gift is obtained, to frustrate Stewart's payment.
