Delivery when presumed made, and for whose Behoof.
L Monimusk v. L Pittaro.
1628.
February21, Case No. No 231.
A bond of provision in favour of children delivered to the mother's brother, was held to be a depositum, and not for behoof of the children.
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In an action of exhibition by the Laird of Monimusk against the Laird of Pittaro, for exhibition of certain bonds, and re-delivery of them to the pursuer, which were made by the pursuer in favour of his bairns for their provisions, and which were put by the father in the defender's hands, who was mother-brother to the bairns, to be kept by him to their uses; in respect of the which, the defender alleged, That the pursuer having so deposited them, they became the bairns' proper evidents, as effectual as if they had been delivered to themselves, being made for their provisions, which their father did; and their mother now being dead, the pursuer could not seek them again to be altered in their prejudice, or destroyed at the father's pleasure. Which allegeance the Lords repelled; and found, that notwithstanding thereof, the father might seek back again the said bonds, and alter or cancel them at his pleasure; but real securities or lands being expeded by the father to his bairns, are not retreatable by him.
Act. Learmont & Hay.Alt. Belshes.Clerk, Gibson.
Fol. Dic. v. 2. p. 155. Durie, p. 348.
