Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BONA FIDE CONSUMPTION.
Subject_3 From what period a bona fide possessor is accountable?

Mrs Margaret Laurie of Redcastle
v.
Alexander Spalding of Holm

Date: 21 June 1769

Click here to view a pdf copy of this documet : PDF Copy

[Faculty Collection, VI. 347; Dictionary, 1764.]

Monboddo. The case of this purchaser exceedingly favourable; for he in effect purchased upon an interlocutor of the Court. I must, however, find the law to be as it has been laid down by this Court and by the House of Lords. The question is, When did the bona fides cease? This is settled, by the Roman law, from the time of lis conteslata: and it is a rational rule; for every man is presumed to understand the law. And when a case is once fairly stated, the defender, if he fails in the end, is presumed to be sensible that his cause is bad. Our practice, it is true, goes not so far; but I think that bona fides must cease from the date of the interlocutor of the Ordinary. In the case of Pitrichie, bona fides was found interrupted by the first interlocutor of the Lords: but that does not impinge upon my principle; for that interlocutor, from the form of proceeding, happened to be the first interlocutor in the cause.

Pitfour. I cannot adopt the maxim of civil law, that every man is presumed to know the law. We see the opinions of Ordinaries to be often doubtful, or corrected by the Court; and even the opinion of the Court to be corrected on a rehearing. Were the rule of the civil law to be adopted, a citation, or even a demand, would interrupt bona fides.

President. The question as to the ceasing of bona fides has ever been, and will be, arbitrary. So far seems clear, that, when a question occurs as to a point of law, the party is entitled to take the opinion of the whole Court. The question as to bona fides is in itself arbitrary;—it may cease from citation. In Pitcaples' case, it was found not to cease until the judgment of the House of Peers.

On the 21st June, “the Lords found the defender accountable from the first term after the first interlocutor of the whole Lords,” adhering to the interlocutor of Lord Justice-Clerk.

Act. G. Ferguson, R. M 'Queen. Alt. A. Wight.