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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mr. Archibald Denham v Alexander Denham. [1737] 5 Brn 200 (15 December 1737) URL: http://www.bailii.org/scot/cases/ScotCS/1737/Brn050200-0188.html Cite as: [1737] 5 Brn 200 |
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[1737] 5 Brn 200
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.
Date: Mr Archibald Denham
v.
Alexander Denham
15 December 1737 Click here to view a pdf copy of this documet : PDF Copy
“Found that the simple contracting of personal debts, on which no diligence followed against the estate, does not infer an irritancy of the contractor's right.
“This I note only as an instance that lawyers will argue any thing.
“It does not appear that ever before this time it was pretended that the contracting of personal debts did infer an irritancy of the contractor's right to his estate : nothing could be more absurd ; but what gave rise to the act of Parliament was this, viz. it was much agitated among the old lawyers how far clauses irritant and resolutive could, by law, bar an apprising, and its that the first instance of this point being determined was that of the taillie of Stormont in 1675. Notwithstanding of which decision, lawyers remained divided in their opinion : ratio dubitandi, an apprising, with infeftment, is a real right which cannot be prejudged by such clauses, which are merely personal. On the other hand, an apprising can only carry the debtor's right such as it is, and therefore as it is affected by these clauses; and it was to settle this question that the act of Parliament, 1685, was made, which, agreeable to that decision in the case of the taillie of Stormont, statutes that it shall be lawful to his Majesty's subjects to tailzie their lands and estates, and to affect the said tailzies with irritant and resolutive clauses, whereby it shall not be lawful to the heirs of tailzie to sell, &c. or contract debt, or to do any other deed whereby the samin may be apprized, &c. By the argument in this information, the not purging a debt contracted before the succession devolved, nay, the omission of it for an hour, should be an irritancy.
“It surprised much to hear the President, notwithstanding of all this, declare himself against this interlocutor. But what shall one say ? Bonus quandoque dormitat Homerus.”
The electronic version of the text was provided by the Scottish Council of Law Reporting
