Scottish Court of Session Decisions

Subject_1 QUOD POTUIT NON FECIT.

Patrick Haldane of Bearcross, Esq; one of his Majesty's Solicitors,
v.
Archibald Duke of Douglas

Date: 15 February 1753
Case No. No 13.

A letter is not sufficient revocation of a bond revocable at pleasure, though it is sufficient to stop an annuity payable during pleasure.

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The Duke of Douglas, in 1718, granted bond to his sister, Lady Jean Douglas, for the sum of 30,000 merks Scots, bearing annualrent, but containing a power to his Grace to revoke the same at pleasure.

Afterwards, in 1736, the Duke granted to Lady Jean a bond of annuity, narrating, that, by bonds of provision, granted either by the deceased Marquis of Douglas, or by himself, she stood provided in the sum of 50,000 merks; and that the yearly annualrent of the said sum, being L. 138: 17: 9⅔ Sterling, was not a sufficient fund for supporting her conform to her degree and quality; and therefore as a testimony of his brotherly love and affection to the said Lady Jean, he settles upon her, during his pleasure allenarly, an additional sum of L. 161: 2: 2⅔ Sterling, to be paid quarterly.

The Duke paid these annualrents and additional annuities regularly till Whitsunday 1749. But, in July said year, he wrote a letter to Mr Archibald Stewart, his doer, discharging him to make any further payments to Lady Jean; of which letter Mr Stewart acquainted Lady Jean; and, on the 2d of June 1752, the Duke executed a formal revocation of the bond for 30,000 merks, and of the bond of annuity.

Lady Jean Douglas being debtor to Mr Patrick Haldane by bond, dated 23d May 1743, he used arrestment in the Duke's hands of all sums of money due by his Grace to Lady Jean, and brought an action of forthcoming; and, amongst other things, insisted against the Duke for the annualrents of the 30,000 merks, and for the additional annuity since Whitsunday 1749.

Pleaded for the Duke; That these sums were only payable during pleasure, and therefore neither Lady Jean nor her creditors can demand them from the Duke. It was not necessary to make any intimation to Lady Jean, that he was not to continue the favour, it being a good answer to any demand for these sums from the Duke, to say, that he did not please to pay them any longer; but if any such intimation was necessary, it was sufficiently made by his Grace's letter to Mr Stewart in July 1749, with which Lady Jean was acquainted before Lammas that year.

Answered for Mr Haldane; That the annualrents and annuities continued to be due till formally revoked in June 1752; for, till that time, neither Lady Jean, nor her creditors, could know that his Grace was to withdraw his bounty; and, till she knew it, she was entitled to live up to the yearly income settled on her by her brother, and creditors to contract with her on the faith of it. An obligation, si voluero dare spondeo, is absurd; but one may bind himself to pay a yearly sum revocable at pleasure, and such sum will continue to fall due till actually revoked. The letter to Mr Stewart is not equal to a revocation; for though Mr Stewart was thereby discharged to pay, yet the Duke, or some of his factors, might have paid annualrents and annuities; at least, there can be no doubt that the annualrents of the 30,000 merks continued to become due till the bond was revoked.

The Lords found, That the additional annuities and annualrents of the 30,000 merks were due till actual revocation; and that the additional annuities were actually revoked by the Duke's letter to Mr Stewart, dated 10th July 1749, and notified to Lady Jean before Lammas 1749, and therefore were only due to Whitsunday 1749; but found, that the annualrents of the bond for 30,000 merks were due till the date of the revocation of the said bond in June 1752.

Act. Advocatus, Haldane & Hay. Alt. Ro. Craigie & And. Pringle. Reporter, Dun. Clerk, Kirkpatrick. Fol. Dic. v. 4. p. 206. Fac. Col. No 66. p. 101.