Manuscripta juridica

Decisiones curiae supremae Scotiae - Practicks 1550-1577: (extracts) Three case reports by Maitland, dealing with 'frustration of contract', caused by supervening impossibility of performance, written as an appendix to the provisional edition's item 505 which discusses the same problem.

[{i}Item 199 of Maitland's Practicks, with slight variants of wording:{/i}] The lyk was found in ane action persued be the Laird of Sanquhar against Maxvell. The defender allegit that he sould not remove fra ane certane land quhairof he had tak of the said persuer his predecessor, becaus he want somme(?) termes to rune(?), be resson of the ward. The persuer allegit that the defender sould not keip them, becaus it was not conteened in the lettres of tack to warrand fra tackis, but allenarlie generall warrandice. The Lords repellit this alledgence of the persuer and admittit the defender, and the said persuer ordainit to keip sua many tacks of the saids landis as was to run quhen the landis fell in ward, efter the passing furth of the samyn. 30 Juli 1563.

[{i}Follows item 308 of Maitland's Practicks, again with slight variants of wording:{/i}] The lyk was found in the action of removeing, persueit be the kings donator to the ward landis of Drangane against the tenentis thairof. Allegit be ane tenent that the last Laird, by whois deceass the landis wardit, sett him ane lyfrent tack of some of thes landis, and thairfor sould have half ane day to call his warrand. It was allegit be the donator that he sould have na day to call his warrand, becauss quhatsumever tacks the tenentis had of thes ward lands sould not prejudge the donator, but that he mycht immediatile enter thairto, the tenentis being lawfullie warnit to remove. And quhen the air came to aige, the tennentis to have warandice against him of sua many zeirs as was to rin. It was allegit that that was trew quhair tackis wer set for certaine zeiris, for then it mycht be knowin quhat yeris war to rin, but his titill was ane lyfrent tack and could not be known how long or short he wold live. And thairfor sould have ane day to call his warrand instantlie. Quhilks alledgence of the defender was admittit be the Lordis. 16 December 1569.

[{i}Follows item 323 of Maitland's Practicks, with substantial variants of wording:{/i}] Lyk as it was found in ane actione of warrandice movit be James Coming, air of Pulquahrin(!), against N. Crawfourd of Drongain and his tutors and curators, for warrandice of ane lyfrent tack quhilk the said Craufurds father sett to the said persuer. Fra the quhilk he (was) warnit to remove, be the donator of the ward of Drongain. The defendar allegit, he aucht no wther warrandice except sua many (yeires) as the persuer sould happin to want be ressone of the ward, and that thairefter the said ward he sould have als many eftir the furth running of the warde, and sua aucht not now to be decernit for warrandice. The persuer allegit that his tack was ane lyfrent tack and that thir tackis ar not tack in [ n {i}repeated{/i}] respect of thair aires, but only in respect of themselves. And sua, seing that the mynds of the tacker and maker of the tack was that the said persuer sould be provydit of ane tack during his lyftyme, and that he mycht deceass befoir the end of the ward, and sua sould be defraudit of ane during his lyvtyme, contrar to the contracters mynd. The Lords decernit the persuers or his airs to have als many zeirs takis efter the furth runing of the ward as the persuer sould want be the ward, bot wold not decerne warrandice presentlie with effect, becaus thair was no speciall provision of warrandice fra ward in the said tack - quhilk, if it had been, it wold (have) inferrit presentt warrandice during the persuers owin lyftyme. 6 December 1570

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Author(s):

• Richard Maitland of Lethington

No. of pages: Fol. 10r lines 2 - 44 =