Scottish Court of Session Decisions

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

Scot of Heartwoodmyres
v.
Margaret Scot, his Wife's Daughter

Date: 10 January 1650

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In the suspension by Scot of Heartwoodmyres, for his wife, and himself jure mariti, against Margaret Scot, his wife's daughter, left an infant, and under her mother's tutory, who confirmed her said daughter executrix to her father,—by the reasons libelled against the said Margaret her decreet, there fell out an emergent, eiked by the said Heartwoodmyres, viz. That the decreet was only obtained against him jure mariti: and true it is, that, since the raising of the said suspension, his wife, who was principal debtor, was dead; and so his interest ceased, and he could be debtor no more than if a bond of his wife's, being registrate against her, letters had been raised against her and him for interest, and they had suspended: in which case, she dying, he would be made free; and if he had been imprisoned by way of caption, no suspension having been raised, he would have been relieved and set free after her death. And here it was noted, that there was a great difference between the ground of a debt and the way-making to the execution; a decreet not being the ground of any debt, but the preparing of a way for the subsequent execution: yet many thought the decreet obtained in this case was more than a preparation for execution, and him to be constituted debtor thereby; especially seeing he had postponed the charger in her payment, by raising of the foresaid suspension. Nevertheless the Lords superseded to give answer to this emergent, while they dispute on the principal suspension.

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