Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Major Biggar
v.
The Laird of Niddrie

Date: 15 November 1672

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In a suspension raised at Niddrie's instance against the Major, of a decreet recovered at his instance, for payment of the principal sum and annualrents contained in a bond, to which he was assigned by the Laird of Wolmet, upon this reason, That he ought to have retention of the annualrents preceding the year of God 1650, conform to the Act of Parliament, allowing retention of annualrents in anno 1645:—

It was answered, That the Act of Parliament was conditional, in case of payment of the annualrents punctually every year, whereas the suspender had been deficient for many years.

It was replied, That the bond and decreet being conditional,—until the condition was purified, the suspender was not bound to make payment;—viz. The delivery of a letter of Slains for the mutilation of Wolmet.

It was Duplied, That the Act of Parliament was general and without distinction, and allowing retention only where annualrents were duly paid.

The Lords did find the reasons relevant; and that the Act of Parliament could only be interpreted to be of debita pura, where nothing impeded payment. But, as to conditional obligations suspending payment, it could not be the meaning of the Parliament that the debtor should not have retention until the fulfilling of the condition, at which time the debt became simple, and the debt was payable, the debtor not being in mora till that time.

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