Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Alison Hamilton
v.
The Laird of Kinbrachmont

Date: 4 July 1628

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Alison Hamilton, relict of Gavin, Bishop of Galloway, pursued Kinbrachmont, one of the cautioners in her contract of marriage for her husband, for implementing of her contract, whereby her husband was obliged to infeft her in certain annual-rents, one of 400 merks, another of 300 merks. Alleged for the defender, and found by the Lords, That these defalcations should be made. 1mo, After her husband's death, her children being confirmed executors, they being minors, she gave up inventory and made faith, in which was contained 2000 merks of pose, that was in her husband's purse the time of his decease. For this, the Lords found, she might have had retention, and her negligence could not prejudge the cautioner. Sicklike there was, of utensils and domiciles, £1000 which she might also have retained, and therefore was bound upon her. And further, it was found, That the defender was not astricted to prove her intromission with these, otherwise than by the testament given up by herself; which proved sufficiently against her; unless she would allege, relevantly, that some of the moveables were in other men's possession the time of her husband's decease, and that she never intromitted with them.

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