Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Carre of Cavers
v.
Lord Polwart

Date: 14 December 1693

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Carre of Cavers having charged the Lord Polwart, on his bond, he gave in a bill complaining of the clerk of the bills, who had presented horning on that registered bond; seeing, by the act rescissory, in 1690, and the explanatory act in 1693, a superseder was given, both for principal sums and their annualrents, to all forfeited persons whose names were enumerated; whereof he was one: And it was referred to the commission of Parliament, to consider how far they should be liberated of their annualrents; and therefore, the Lords were not competent judges thereto, but behoved to remit it to the Commission's cognizance.

The Lords distinguished three cases. 1mo. Of the principal sum and annualrents current during the forfeiture; and as to these, the Lords were clear, that the Parliament had taken them out of the Session's jurisdiction, and made the Commission privative judges thereto. The second case was, as to annualrents fallen since the Revolution in 1688; and, as to these, the Lords generally thought there could be no question that these were due, and fell not under the Commission. The third was, of annualrent owing by the forfeited person, before the doom of the forfeiture and when they were still in possession of their estates. And here the Lords divided; four of them thinking, that the Commission were also empowered to grant a superseder for these, and that the Lords could not meddle with them: but six or seven carried it, that the Parliament's remit was taxative, and only relating to the annualrents due during the forfeiture and dispossession, and thought the Lords not excluded nor incompetent as to the annualrents due before the forfeiture; and, therefore, that the letters of horning were warrantable quoad these.

Then it fell to be considered, that the horning being declared null, and recalled, in so far as it gave warrant to charge for the principal sum and annualrents, during the forfeiture, that, therefore, they should fall in totum, and be declared null: But the Lords remembered, that a charge might be illegal quoad a part,—as if I charge for a sum, whereas a part is instructed paid by a discharge produced; yet it may subsist pro reliquo: and that many things may be good reasons of suspension, and yet not amount to a nullity; seeing, utile per’ inutile non vitiatur; and, therefore, they inclined to sustain this charge as to the annualrents preceding the forfeiture; otherwise he would but raise new letters, and charge for these; which would only multiply expenses on the parties, and put them to give in a new bill of suspension.

It was started in this case, if creditors might, for such debts as were superseded and referred to the Commission, serve inhibition, and raise adjudication or other real diligence; for, if that were stopped, as well as personal, then a creditor, who lends his money now, and has all that diligence and execution open to him, is in a better condition than those creditors whose debts are prior to the forfeiture. But this point was not decided. Vid. 3d January 1694. [Campbell against Neilson.]

Vol. I. Page 578.