M'Intyres v. Orde

Donald M'Intyre, teacher at Loehmaddy, Inver nesshire, having made application to the factor for Sir John Powlett Orde and Captain Orde, life renter and fiar respectively of the estate of North Page: 605 ↓

The Lord Ordinary ( Fraser ) pronounced this interlocutor—“Allows to both parties a proof of their averments, and to the pursuers a conjunct probation: Further, repels the first plea-inlaw for the defender to the effect that ‘the pursuers have no title to sue,’ in so far as it is stated as a bar to the action being proceeded with, reserving to the defender to insist upon confirmation before extract of any decree in favour of the pursuers.”

He added this note—“The plea of the defender of no title to sue is based upon the fact that the pursuers have not obtained confirmation in regard to the particular claim now insisted in. The want of confirmation is no bar to the right to sue, although the pursuers cannot get extract of decree in their favour till such confirmation has been obtained. This will be done, no doubt, after the litigation is ended.

The defender reclaimed, and argued—The pursuers had set out no valid contract of feu. A contract to give a feu must be constituted or at least proved by writing. Custom cannot control or alter the law. There was not sufficient specification of damage to entitle the pursuer to a proof—Smith's Leading Cases, i. 620, and cases there cited. There could not have been a claim for implement, and there could not therefore be a claim of damages for non-implement.

Authorities— Bell v. Lamont , June 14, 1814, F.C.; Lamont v. Sinclair , Jan. 23, 1878, 5 R. 548 ; Allan v. Gilchrist , Mar. 10, 1875, 2 R. 597 .