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.

Ninian Hamilton
v.
John Swyne

Date: 11 December 1628

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By contract of marriage betwixt John Swyne and Isabel Hamilton, he received with her in tocher 4000 merks, and was obliged, that in case there were no heirs begotten of that marriage, to pay to the heir and executors of Isabel 2000 merks, in contentation of the moveables, which should appertain to him for her part. She dieth, leaving behind her a son, who was confirmed executor to her; and, after he had lived two years after his mother, he died also. After his decease, Ninian Hamilton, brother to Isabel, is decerned executor dative ad omissa to his sister, before the commissary of Dunkeld, and confirmed the foresaid 2000 merks, as omitted out of the principal confirmed testament by her son, and obtained sentence against John Swyne for the same; which sentence he suspended, and craved to be reduced. One of the reasons was, That it could not be confirmed as omitted, because, at the time of the confirmation of the principal testament, it was not a debt owing, and so it could not be confirmed. Yet, notwithstanding of this reason, The Lords sustained the charge upon this title; for hardly could he have pursued it upon any other ground.

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