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Rory Davidson v John Wauchop's Heir. [1686] Mor 6394 (23 March 1686)
URL: http://www.bailii.org/scot/cases/ScotCS/1686/Mor1506394-043.html Cite as:
[1686] Mor 6394
Subject_1 IMPLIED CONDITION. Subject_2 SECT. VIII.
Obligations, or Renunciations, granted upon an expectancy disappointed, or upon the supposition of a fund of payment of which the party is afterwards deprived.
Rory Davidson v. John Wauchop's Heir
Date: 23 March 1686 Case No. No 43.
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In the case between John Wauchop's heir and Rory Davidson, for 3000 merks he had obliged himself to pay to the said John, if he would demit his office of macer, alleged, He got not the place, but James Gordon was preferred, and so it was sine causa, et causa data causa non secuta. Answered, Its cause was, that I by my demission should make the place vacant, which was all I was obliged to do; and you by the Register's recommendation was to procure it for yourself; I was not bound to get you to succeed me; so it was emptio spei et jactus retis. The Lords found Rory liable.
December 9.—Rory Davidson's case with John Wauchope's heir, mentioned 24th March 1686, was debated in præsentia. Alleged, The bond was causa data causa non secuta, and so null. Answered, The cause and condition failing casu fortuito, by John Wauchop's death, without any fault or mora on his part, and this being jactus retis et emptio spei on Rory's part, condictio chirographi et et repetitio pecuniæ cessat, per claram leg. 10. G. De condict. ob causam datorum. Replied, It was not a completed bargain, but pendent till November 1682, till which time John Wauchope was bound to serve as macer, and he having died before, nihil tibi deest, you are in lucro captando, and I in damno vitando, likeas it depended super implemento tertii, the King's acceptance; and I had not so much time as to procure a new gift, because of his sudden intervenient death, and James Gordon's preference to it. And Vinnius is of the mind, that condictio holds in this case, in his additions to Vecembecius, ad Tit. D. De condict. causa data. The Lords adhered to their former interlocutor; but allowed him, out of the 4000 merks, 1000 merks for the expenses of his journey to London, in contemplation and prosecution of the bargain; which is conform to l. 5. princ. D. eod. tit. where the expense I am put to intuitu of the agreement, must be refunded to me.
Fol. Dic. v. 1. p. 429. Fountainhall, v. 1. p. 409. & 435.
