Balfour-Melville v. Duncan [1903] ScotLR 41_149 (11 July 1903)

Balfour-Melville v. Duncan [1903] ScotLR 41_149 (11 July 1903)

Payments made by the pursuer were not recoverable under condictio indebiti because they were not made in error or ignorance; interest on bonds borrowed to pay children's provisions is not to be treated as children's provisions for the purpose of restricting annuities under the entail; and any objection to the amount of the annuity should have been pursued by petition for restriction, not by action for repetition.

Citation
[1903] ScotLR 41_149
Parties
Pursuer (applicant): James Heriot Balfour Melville; Defenders (respondents): Charlotte Hanbury or Melville, now Duncan, and Leslie Fraser Duncan
Jurisdiction
Scotland
Judgment Date
11 July 1903
Procedural Posture
Civil (repetition/condictio Indebiti) / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
defenders assoilzied (absolved); action dismissed
Legal Topics
Entail, Annuities, Children's Provisions, Condictio Indebiti, Repetition of Payments, Statutory Interpretation
Property Law Succession Law Trusts and Estates Entail Annuities Children's Provisions Condictio Indebiti Repetition of Payments +1 more

Case Brief

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Parties

James Heriot Balfour Melville

Pursuer (applicant)

Charlotte Hanbury or Melville, now Duncan, and Leslie Fraser Duncan

Defenders (respondents)

Procedural Posture

Civil (repetition/condictio Indebiti) / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether interest on bonds borrowed to pay children's provisions counts as 'children's provisions' for the purpose of restricting annuities under the entail
  2. 2 Whether overpayments made knowingly can be recovered under condictio indebiti
  3. 3 Whether the annuity exceeded the one-fifth free rental limit and if so, whether repetition is available

Ratio Decidendi

Payments made by the pursuer were not recoverable under condictio indebiti because they were not made in error or ignorance; interest on bonds borrowed to pay children's provisions is not to be treated as children's provisions for the purpose of restricting annuities under the entail; and any objection to the amount of the annuity should have been pursued by petition for restriction, not by action for repetition.

Court Disposition

defenders assoilzied (absolved); action dismissed

Orders

  • Court adhered to Lord Ordinary's interlocutor dismissing the action; defenders assoilzied from conclusions of the summons