A tocher was payable to a father and son, to be employe by the father, with so much more, on land, for the use of the son and his wife in liferent, and their children in fee. Payment made to the' son, in presence of the father, was sustained, as good to the debtor.
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Janet Johnston, in the contract of marriage of her daughter with Robert Howieson, spouse contracted to her daughter, being obliged to pay to Robert Howieson elder, father to the husband, and to the said Robert younger, the husband, the sum of 1000 merks in tocher, (for these were the words of the contract,) “That she was obliged to pay it to Robert Howieson elder, and to Robert Howieson younger his son, to the effect it might be employed upon land, or annualrent, to the said husband and wife, and the longest liver of them two, and the bairns of that marriage, with another 1000 merks to be paid by Robert Howieson elder, and added to the former sum by him, the time of the paying of the said tocher;” and by a posterior clause of the contract, of this tenor, “The said Robert elder, was obliged that after his receipt of the said sum from the said Janet, he should employ the same with his own other sum, in manner foresaid.” Upon which contract, Robert Howieson elder, having charged her to pay, she suspends, that she had paid the same to Robert younger, and had reported his discharge; which payment was really made in presence of Robert elder, he then not opponing thereto; and the father opponing the contract, by the meaning of the words whereof, it is evident, that the payment should be made to him, seeing he is obliged to employ it, so that the son's discharge could not free her, in respect he has spent it, whereas it should have been employed, the Lords found the reason relevant and proven, and that the payment made to the son in presence of the father, who opponed not against the payment at the making thereof, as he might if he disallowed the same, to be as sufficient, as if he had consented expressly thereto.
Clerk, Hay.
Fol. Dic. v. 1. p. 378. Durie, p. 617.
