Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Hector Monro
v.
Dr Kincaid

Date: 8 March 1626

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

In a suspension, at the instance of Hector Monro against Dr Kincaid, who having acquired the right of certain sums, which the said Hector was obliged to pay by an heritable bond, viz. the annual-rent thereof to Margaret Vaus and Mr Adam King her spouse, liferenters of the sums, during their lifetime, and, after her decease, to Margaret Mawer, fiar thereof, and, in case of her decease unmarried, to the other two sisters named in the said bond,—in the which obligation it is specially set down, that, notwithstanding of the heritable clause therein contained, the said Margaret Vaus, and her said spouse, might charge for the payment of the principal sum conjunctly, they being both in life, and, after the decease of the said Mr Adam and his spouse, that the said Margaret Mawer might charge for the same; and the right of this bond and sums being disponed to the Doctor by the said Margaret Vaus, liferenter, (her husband being dead,) and by the said Margaret Mawer, fiar;—the charges, at his instance, as assignee, were suspended upon these reasons, viz. in respect of the tenor of the bond, which provided that the liferenters conjunctly, they being both in life, might charge for the same, and, after both their deceases, the fiar might charge; and seeing Mr Adam King, husband to Margaret Vaus, liferenter, was dead, the relict could not charge, herself, for the principal sums, seeing the bond provided that the charges for the same should be executed by them both conjunctly, being both on life, and so the one being dead, as she could not, no more could her assignee charge therefore: And sicklike the bond provides, that the fiar should not charge while after both the liferenters' decease; so that Margaret Vaus yet living, the fiar nor the assignee could not seek the same: and, further, that the fiar, or her assignee, could not seek the principal sum, in respect of the tenor of the bond providing the sum to be paid to her, and failing of her by decease unmarried, to her two sisters; and so, she being yet unmarried, she could not assign nor dispone the same in prejudice of her other sisters:— The Lords, notwithstanding of both these reasons, sustained the charges for the principal sum, at the instance of the assignee, seeing they declared that that clause anent the not charging for the principal sum, during the life of the liferenters, was introduced in favours of the liferenter and fiar, and not set down in their prejudice, or in favours of the debtor; and, therefore, seeing both liferenter and fiar had made an assignation, the assignee having both their rights, might charge therefore, seeing the bond provided not that the fiar might not charge while the liferenter's decease, but bore that she might charge after both their deceases, albeit in effect both the words be one; and also found, that the substitution foresaid was not any impediment which could hinder the first person, fiar, to transmit effectually the right of the sums in the person of the assignee, albeit she was unmarried. And therefore sustained the charges at the assignee's instance.

Act. Lawtie. Alt. Hope. Gibson, Clerk.

Vid. for this last part, 14th January 1631, Helen Sharp.

This matter being called in præsentia Dominorum, 10th March 1626, Major Munro compearing, and claiming the sum, this same decision was allowed, and Dr Kincaid preferred, and his assignation found good and lawful, albeit his cedent died unmarried.

Page 189.