Scottish Court of Session Decisions

Subject_1 BONA FIDE CONSUMPTION.
Subject_2 SECT. VI.

Possession upon a Right null ex facie.

K Advocate
v.
Some Excommunicants

Date: 26 June 1629
Case No. No 23.

Persons excommunicated possessed lands, &c. for long after the excommunication. In a process at the instance of the King's Advocate for the value of the fruits, they were allowed deduction of actual outlay, but nothing for the maintenance of themselves and families.

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Several persons excommunicate, being pursued upon the act of Parliament 1609 for payment of certain corns growing upon the mains possest by themselves, of diverse years after the sentence of excommunication, and now by-past, before the intenting of this pursuit; and the defenders alleging, that the pursuit being for the growth of corns of by-past crops, which were consumed, and not now extant, the same ought not to be sustained; for reason could not insorce, that they should be decerned to pay that which was bona fide spent diverse years since, being corns which could not be keeped. Likeas the same being spent in servants fees, and others, who laboured the ground; and in the maintenance of themselves and their families, which rested out over the seed, and teind, which also ought to be deducted, therefore the same being so spent for maintaining of their lives, and for their entertainment, it ought to be allowed, as both bona fide consumed, and necessarily done, and therefore ought not to be repeated, nor they subject to pay the same. The Lords found, that the seed, and teind, and servants fees, and other expences made in labouring of the ground, and mains, and winning of the corns growing thereon, ought to be deducted off the corns foresaids, growing the years libelled, for which the defenders were convened, the same being made special; but as for that part of the allegeance, anent the corns spent upon their own entertainment, being, as they alleged, the only means whereby they lived, and so necessarily alleged to be consumed: The Lords repelled that part of the allegeance, and would not allow the same; but sustained the action for the corns foresaid, growing, and intromitted with by the defenders, as said is, except only for teind, seed, and servants-fees, and expences of the labouring and winning thereof, for which defalcation was made, and no further; for it was found, that the action was all good for the by-gones, since the excommunication, which took away bona fides, albeit they were consumed, as it is for time coming, so long as they stand excommunicate; for that same necessity alleged, for entertaining for by-gones, holds also for time to come, which, if it should be admitted, would elide the act of Parliament. But I think the reason holds not, for in by-gones they are spent, and not so in years to come, whereby they are extant. And, upon the 11th December 1629, betwixt the same parties, the excommunicants and their tenants being both convened, each one of them in solidum, to pay the farms of their lands, being both holden as confelt, decreet was given against them, and each one of them, in solidum, but once payment was declared, should only be taken from one of them to liberate both.

Act. Advocatus. Alt. Aiton, M'Gill, & Hope. Clerk, Hay. Fol. Dic. v. 1. p. 108. Durie, p. 451.