Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

Forbes of Balnagaske
v.
Foullertoune of Kinnaber

Date: 4 January 1650

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[See page 449.]

In Kinnaber and Aslowne their process, it was farther alleged, That although debitor non præsumitur donare, yet debitor potest donare: likeas it is offered to be proven, that the disposition whereupon the infeftment renounced did proceed, was for love and favour, without relation to the 4000 merks provided by the contract of marriage, which is now in question. 2do. That the intention of the disponer was to settle his succession amongst his children, and other successors after them. 3tio. That it was for sums of money received, or granted to have been received, by the father. And so it was desired that the said disposition might be produced. Whereunto it was answered for the disposition, That it was not Kinnaber's evident; and, as to the reason of love and favour, the father might have secured [him] for that same cause in the 4000 merks controverted, by giving him his estate by that disposition, and the providing thereby for his succession; in case his son of the first marriage had heirs-male of his body, the said Gideon's second son, to whom the disposition was made, was to get 12,000 merks, the triple of the sum controverted; and as to the grant of sums recovered by the father, it is but cast to, dicis causa, since the receiver of the disposition was scarce past pupillarity, and had no adventitious goods or money to give out; but the father might well acknowledge money received by him, who was debtor in the said 4000 merks. And, in respect of this duply or quadruply, the Lords stood by their former interlocutor, and assoilyied Kinnaber.

Page 132.