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Scottish Court of Session Decisions >>
Creditors of Sir James Murray v James Murray. [1667] Mor 13465 (1 February 1667)
URL: http://www.bailii.org/scot/cases/ScotCS/1667/Mor3113466-045.html Cite as:
[1667] Mor 13465
A reversion bearing payment at the wadsetter's house in London, satisfied by consignation at Edinburgh where his successor dwelt.
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There being a wadset of the lands of Stirling granted by Sir James Murray to James Livingston of the bed-chamber, containing a clause of requisition and reversion, on payment at London; the lands being apprised by Sir James's Creditors, they having the right of reversion, did use an order at Edinburgh against James Murray, as now having a right to the wadset, and pursue a declarator. The defender alleged absolvitor, because the order is not conform to the reversion, which is strictissimi juris, and behoved to be done at London. It was answered, The place being adjected in favour of James Livingston who resided at London; the pursuers have done more, having consigned at the present wadsetter's domicile, London being only appointed, as it was the former wadsetter's domicile, wherein he hath benefit, and can have no detriment. It was answered, He was not obliged to debate his detriment, for if his money were in London, he would get six of the hundredth of exchange to Scotland.
The Lords sustained the order, the pursuers making up what should be modified by the Lords, for the interest of the wadsetters.
Fol. Dic. v. 2. p. 325. Stair, v. 1. p. 432.*** Newbyth reports this case:
There being a contract betwixt SirJames Murray and James Livingston of the bed-chamber, whereby the said James Murray wadset to the said James Livingston, the lands of Skirling, redeemable for the sum of L. 2000 Sterling; Mr Andrew Oswald and remanent Creditors of Sir James Murray having comprised the said lands, and used an order of redemption and intented declarator, concluding count and reckoning upon the act of Parliament, which is first craved before declarator of redemption; which cause being called, it was alleged for the defender, (denying always any such reversion), That the defenders cannot be obliged to count, because any order of redemption used, and consignation, was to have been at London in the hands of the chamberlain at London; and the order and consignation made by the pursuer was here at Edinburgh, as said is. To which it was replied, That albeit in the reversion granted by Mr Livingston, it was expressly provided, that the order and consignation should be at London, and which was only done because the said James was residenter there, and for his conveniency allenarly, but having made over his right in favour of Sir Robert Murray, and the right thereof being now in the person of the defenders, Scotsmen residenters in Edinburgh, the order and consignation made at Edinburgh is sufficient. To which it was duplied, That all reversions being stricti juris ought to be fulfilled in omnibus punctis, so that the defenders are not obliged to debate upon the conveniency or inconveniency thereof; and if the money had been paid and consigned at London, which the pursuer might easily have done, the defenders might have made profit thereof, by returning the same to Scotland upon exchange. The Lords repelled the defence and duply, and sustained the order, notwithstanding the same, with the consignation, was made at Edinburgh, and not at London; reserving to themselves what consideration the defender should have for exchange.
