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Scottish Court of Session Decisions >>
Andrew Merry v Lockhart of Lee. [1711] 4 Brn 835 (6 June 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Brn040835-0341.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Andrew Merry v. Lockhart of Lee
Date: 6 June 1711
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Andrew Merry, chirurgeon-apothecary in Edinburgh, having attended John Lockhart of Lee during a long course of sickness and swelling in his legs, and furnished a sear-cloth at his burial, pursues this Lockhart of Lee, his brother, on the passive titles, for payment of a great account; who objecting against some articles set down for his pains and attendance, it was answered,—That within burgh the payment of the drugs used to pass for all; but where the patient lived in the country, the waiting on him, to the loss of his other employment, was a plain damage, at least a lucrum cessans; which happened in this case, for he made a journey on his account to the Lee; and, after staying several days, left his apprentices alternis vicibus for some months, to attend him.
The Lords thought the payment of the drugs could not here compense his pains; but that he might very well charge a separate article for his attendance and loss of time; which forced Lee to propone a total exception,—That, he being fiar of a tailyied estate under irritancies de non contrahendi) debitum, he was not liable for this more than for any other debt; for this might be the ground of an adjudication to evict the estate, and so evacuate the design of the tailyie.
Answered,—This was of a very different nature from other debts; it being officium humanitatis et debitum naturale to bury. And if this privileged debt were cut off, then the heirs of tailyie in Scotland (who were very numerous) behoved to lie above ground and rot; for who would funerate, that knew he was to get no reimbursement?
The Lords thought this point deserved farther deliberation, and therefore did not decide it at this time.
