Scottish Court of Session Decisions

Subject_1 TERM LEGAL AND CONVENTIONAL.

Robert Paterson
v.
Thomas Smith

Date: 8 December 1704
Case No. No 40.

A liferentrix dying in the forenoon of Martinmas day, the question arose, whether her executors could claim that half year's rent as due. It was found, that the liferentrix attaining any part of Martirimas day, her executors had right to that half year. See Brunton, No. 16. p. 15885.

Click here to view a pdf copy of this documet : PDF Copy

In a cause pursued by Commissary Robert Paterson against Thomas Smith, it came to be debated if a liferentrix dying on a Martinmas day in the forenoon, her executors could claim that half year as due. Some alleged, that, in favourable cases, dies inceptus habetur pro completo. Others said, Though it was favourable to life-renters, yet it was not so to fiars; and therefore it should be counted de momento in momentum; and, if one have a bond payable on Martinmas day, and should charge with horning for payment that day, it would be thought precipitant, seeing that whole day is in favour of the debtor, et nec venit nec cessit dies till the next day after, and then the jus exigendi begins. There is one practique observed by Durie in this case, on the 16th of February, 1642, Executors of the Lady Brunton contra the Bishop of Glasgow's Heirs, No. 16. p. 15885. where her executors are preferred, she having died in the afternoon of Martinmas day; but there, the matter of fact was, that she lived till three or four o'clock in the afternoon, and so leaves in the dark what the Lords would have said if she had died before twelve, and does not determine the case now in hand; and there seems to be no reason why her out-living mid-day should give her executors, or husband, jure mariti, right, more than if she live to the beginning of that day; there being no standard to fix on, save either to require her out-liying the whole term-day, or her reaching the beginning of it; yet it was generally thought a principle, that though life-renters lived to the term, yet if they died before the afternoon, they had no right to that half year; and so think Sir George Mackenzie in his Institutes, Title, Servitudes; and Stair, Title, Liferent Infeftment, § 9. and Title, Executry §, 57. The Lords being equally divided on this question, it was carried by the President's vote, that the liferentrix attaining any part of Martinmas day, her executors had right to that half year; which seemed to innovate the former general opinion about this matter, though it was not contrary to any prior decision.

Fountainhall, v. 2. p. 245. Dalrymple reports this case:

In the process at Bailie Paterson's instance against Smith, for clearing the by-gone annuities which had been resting unpaid to his wife by virtue of her life-rent provision granted by Young her first husband; it appeared that his wife died on Martinmas day, betwixt three and four o'clock in the morning; so that the question arose, Whether the pursuer, as in place of his wife, had right to the annuity payable at the term of Martinmas that she died.

It was alleged for the defender, That the liferentrix dying in the forenoon, she had no right to that term, because the greatest length the Lords did proceed in the like case, was to sustain the right of the liferentrix surviving mid-day, 16th February, 1642, The Lady Brunton, No. 16. p. 15885. where the question is stated, whether the liferentrix not having survived the whole day had right to that term of Martinmas; and it was found she had; but it was also remarked as the causa decidendi, that she died not till the afternoon about three or four hours; and ever since it has been held as a fixed rule, that the relict's surviving mid-day could only entitle her to that term's life-rent.

It was answered: The former practique does indeed remark the liferentrix surviving mid-day, both in the debate and in the decision; yet that cannot be said to be the causa decidendi, but only the species facti; for decisions are made according as the fact is stated. But there is nothing either reasoned in, or imported by that debate and decision, that can infer the necessity of the relict's surviving midday. It has indeed been reckoned a rule ever since, that the relict's living till afternoon, gave her right; but whether the relict's dying in the morning had right, has not occurred to be determined. But now that the case lies before the Lords, it must be judged by the analogy of law; and by the same rule that the relict surviving mid-day had right, she must necessarily have it by her surviving any part of that day, because the only foundation of the decision is, that dies ceptus pro completo habetur, which holds as well in this case as in that; for if her title did not arise by the out-running of the whole day, which is indeed the only proper ground of debate about the term, it must necessarily arise from surviving the commencement of that day; and there is no shadow of reason for fixing midday to be the period more than any other hour.

“The Lords found that the pursuer as in the liferentrix' place had right to the Martinmas term.”

Dalrymle, No. 52. p. 67.