Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

William Muirhead
v.
The Lord Colvil

Date: 23 June 1715

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The Lord Colvil, as heritable bailie of the regality of Culross, having installed William Muirhead as clerk of court during life, for which his Lordship got 1200 merks; he continued in the exercise of that office for six years or thereby, till my Lord having failed to take the abjuration imposed by the government, the court became vacant for want of a judge : whereupon Muirhead raises a process against my Lord, for repayment of the money, annual-rent, damages, &c. upon this head,—that by his Lordship's fault the office was rendered useless, and therefore he was liable in repayment and damages.

Answered for the defender,—That though a seller be generally liable in case of eviction, yet where it falls out through an unforeseen accident falling out after the sale, he cannot be liable, the contract being uberrimæ fidei; and, therefore, nothing can be understood to come unto it, but what both parties had probably in their view at contracting. Now, the imposing of new engagements by the government, could never be in their view at making the bargain. And this is plainly exprest in that famous L. II. ff. De Evictione, where this general rule is laid down, that Venditor non tenetar præstare (futuros casus) evictionis. And is also the opinion of Cujace, Consultation 38. where, in a case parallel to the present one, he plainly asserts, and that from the authority of the above cited law, that inopinati casus evictionis post venditionem et traditionem ad venditorem non pertinent.

Replied for the pursuer,—That the nature of the thing implied that my Lord should keep courts by himself or his deputes ; for concessa alicui jursidictione, cuncta ea, &c. the pursuer could not exerce his office without a court, nor can a court be without a judge ; and, by the defender's fault, there was neither court nor judge. And the not taking the abjuration is of itself a fault, since the law enjoins it. However, by the nature of the clerk's commission, which was upon an onerous cause, it is implied that my Lord is obliged to have a court there.

Duplied for the defender,—1mo, That whatever obligation he might stand under to the government, yet he was under none to the pursuer, to give an active obedience to all laws that should, after this contract, be imposed. For it could never enter into the minds of contractors, that either party should be obliged, with respect to one another, to take all the engagements that a government should come afterwards to lay upon either of them ; seeing this were in effect to oblige themselves to do a thing which perhaps they might come to think not agreeable to conscience. 2do, That the not taking the abjuration, was not a culpa, even with respect to the government, because the law here has had its force, by my Lord's ceasing to act; and to impose a greater penalty, by condemning him to the pursuer for not acting, were to extend the law beyond intention.

The Lords sustained the defence, and assoilyied.

Act.Boswel. Alt. Jo. Falconer. Gibson, Clerk.

Vol. I. page 133.