Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Philip
v.
Currie

Date: 27 February 1795

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[Fac. Coll. IV, p. 204; Tait, “ Heritable”, &c.]

This case was stated 6th current, and this day the Lords decided this abstract point, that a bond, though bearing annualrent from the date, is not heritable till the term of payment of the annualrent. The Court was unanimous in this judgment, on account of the former decisions, both ancient and modern, particularly one decision in the year 1748, in the case of Craig, observed by Falconer; though all the Lords declared their opinion, that, according to principles, it ought to be otherwise, because, as soon as the subject begins to bear fruits, it becomes a feodum pecuniæ, and therefore heritable. But there may be thus much said for the ancient practice, that as money is not of its nature an heritable subject, like lands, which is a feodum whether it bears fruits or not, and as it is only the bearing of fruits which makes it heritable, to ascertain that, our ancestors required that it should actually have borne, as it were, one crop of the fruits, before it becomes heritable,—Lord Pitfour observed, that, by the ancient style of such bonds, they only bore annualrent by way of penalty, being payable at a certain term, and, failing of payment at that term, with the interest from and after that term. He said also that he had seen heritable bonds which contained only a personal obligation to pay the money at a certain term, and, failing the payment, then to grant an annualrent right. In both these cases the bond was not heritable till the term of payment; and this possibly may have given rise to the practice of making such bonds not heritable till the term of payment.