Scottish Court of Session Decisions

Subject_1 QUOD AB INITIO VITIOSUM.
Subject_2 SECT. I.

Convalescence of a null right.

James Watson
v.
Mrs Anderson and Others

Date: 17 July 1716
Case No. No 5.

Found, that a gift of King's Printer was not irritated by the circumstance, that the patentee had not taken the oaths prescribed by law. His assignation of the right was, notwithstanding, found good.

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By articles of agreement, betwixt James Watson, Mr Robert Freebairn, and Richard Watkins, anno 1711, it is provided, That if a gift of Queen's printer in Scotland were obtained in any of their names, they should all three be equally concerned therein. Mr Freebairn obtains the gift, to take place after expiration of Mrs Anderson's, (but did not take the oaths in due time conform to law,) and then accordingly he dispones a third part thereof to James Watson, who thereupon obtains a declarator against the other two, declaring, that he was one of his Majesty's printers equal in all respects with them in order that he might enjoy the benefit thereof with the privilege of printing bibles: But then Mr Freebairn obtains a new gift, which never was communicated to Mr Watson, who also thereafter pursued a declarator of the foresaid sole privilege against Mrs Anderson, as still encroaching upon the privilege of his Majesty's printer after her gift was expired:

In which process it was objected by Mrs Anderson, 1mo, That the declarator could not be sustained, in regard that Mr Freebairn the patentee was not qualified according to law by taking the oaths as prescribed; and though the pursuer himself was so qualified, that was not enough, because the patent was in Mr Freebairn's name, and Mr Watson was only assumed as a printer; 2do, That the gift was null, in regard it was granted during the currency of Mrs Anderson's gift, and so had not a legal modus vacandi; 3tio, That, since the gift in question, Mr Freebairn had procured in his own name a new gift, which was not communicated to Mr Watson, which necessarily derogated from the first.

Answered for the pursuer, to the first, That in dubio Mr Freebairn's being qualified ought to be presumed; 2do, Since he is not convicted for not qualifying, he ought to be continued in possession, which the Lords use to do in case of pursuits for ministers' stipends, not being quarrelled by the government, and no sentence of conviction against them; and that it was incompetent for the defender, now only a private printer, to make any such objection; 3tio, The Lords' decreet declares the pursuer one of majesty's printers, who is duly qualified; for, though the patent be taken in Mr Freebairn's name, yet it is also to his partner's; and he having, by contract, previous to the gift, agreed that the other two should be partners, he did, upon obtaining the gift, dispone a third part of it to Mr Watson, upon which the Lords declared as said is; and therefore he is to be considered as one in the patent, and, being duly qualified himself, could sustain no prejudice by the other's omission.

To the second, answered; That the pursuer's gift is declared to commence only from the expiration of Mrs Anderson's,, which accordingly is now expired; and consequently she had no interest to quarrel the new gift, seeing it neither was, nor could be used till the expiration of her's, and there is the modus vacandi declared, viz. when her's should expire.

To the third, answered; 1mo, Such a second gift could not take away a jus quæsitum by the patent, being a gift for a number of years; and though Mr Freebairn's name is in the gift, yet, being to partners and assignees, and actually assigned, and the Lords' declarator following thereon, Mr Freebairn could obtain no second gift to evacuate the pursuer's right; 2do, It is jus tertii to the defender.

“The Lords found the pursuer's interest and title by the gift did not fall or become irritated by Mr Freebairn's not qualifying within three months of the date of the gift; and repelled the defence, that after the said first gift to Freebairn, he obtained a second gift before the time at which the first was to commence; as also, repelled the defence, that the said first gift was granted before expiring of the former gift in favour of the defender, the said gift to Freebairn being to commence at the ish of the said former gift given to the defender.”

Act. Sir Walter Pringle. Alt. Sir James Naesmith. Clerk, M'Kenzie. Bruce, v. 2. No 18. p. 22.