Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. V.
Personal Faculties and Privileges, whether they may be founded on directly by Creditors.
Lo Bargenie v. His Sons
Date: 7 March 1627 Case No. No 94.
A man, in his contract of marriage, during minority, bound himself to infeft his children in his lands, upon which they used inhibition. After the inhibition, he granted heritable bonds to creditors; who were found entitled to reduce the contract of marriage upon minority and lesion.
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Lord Bargenie being obliged in his contract of marriage with Josias Stuart's daughter, to infeft the bairns of that marriage in his lands, and inhibition being served thereupon, the Lord Bargenie having thereafter for certain sums borrowed from Sir John Hamilton of Lettrick, and some others, infeft them in his lands, mentioned in the contract of marriage; the said Lord Bargenie, and creditors concurring with him, pursues his own sons gotten in that marriage, for production, reduction, and improbation of that inhibition, and to hear and see it found, that the said contract was made in his minority, and to his enorm hurt and lesion, and therefore ought to be reduced; which pursuit was moved with the concourse of the said creditors, to the effect that the security made to them by the said Lord Bargenie, for their just debt, might be found a lawful title and right to them, and that thereby he might be made an able person, to give them satisfaction and security for the same. In this process, horning being produced against Bargenie's self, whereby he was deprived ab agendo, it was alleged, That the principal party being debared, who had the only interest to pursue this action of restitution, the process behoved to cease, in respect the rest of the pursuers were but pursuers by consequence, whose interest could not sustain the pursuit founded upon the right of the principal party, with whom he only concurs, his interest being taken away, as said is, and he being that, person who only might seek restitution, as was desired. The Lords repelled the allegeance, and found the creditors foresaid might pursue this action, to the effect foresaid, notwithstanding that the principal pursuer was debared by horning. The Lords also in this process, after horning was taken up, sustained this action, for reduction of the contract of marriage, in so far as concerned the fee appointed to be given to the heir of that marriage, in respect it was a fee of the whole lands, which being granted by the father, being minor, to his enorm lesion, could not be sustained.
In this process, the Lords sustained the action, albeit it was moved by the father against his own sons, being pupils, whom by the law he ought to defend, being in his government and administration, and against whom it was alleged, he could move no action within the space of their pupilarity, during the which he ought to have defended them as their administrator and tutor; which allegeance was also repelled, in respect the tutor is not secluded from his Just and lawful pursuit, competent against the pupil; seeing before the intenting of his action, the pupils were furnished by lawful authority, and sentence of a lawful judge, with tutors to defend them, chosen and given them at the suit and desire of their goodsir, on the mother's side; which act of tutory was produced, and the process therefore sustained. Partibus ut supra. See Tutor and Pupil.
