A debtor purchased an apprising led against his own estate, and took a conveyance to a trustee, who granted back-bond, declaring the right to be for behoof of the debtor's son, who was in familia. The apprising was found extinct confusione. See No 181. p. 11503.
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George Grant pursues reduction of a renunciation of a wadset made by Grant of Morinsh to Grant of Kirdels, ex capite inhibitionis, because he had inhibited Morinsh the wadsetter, before he granted the renunciation. The defender alleged, That he had a reduction of the bond, whereupon the pursuer's inhibition was raised, depending, and declared he held the production satisfied, and repeated his reason by way of defence; that the bond was null, wanting a date either of day, month, or year. The pursuer answered, That the bond bore the term of payment to be Whitsunday 1635, and so instructs that the bond was betwixt Whitsunday 1634 and Whitsunday 1635. The defender answered, non relevat., unless the month and day were also expressed, because otherwise the means of improbation cease by proving alibi.
“The Lords repelled this defence, seeing the year was expressed in re antigua, but if improbation had been insisted on, less reasons in the indirect manner would be sustained.”
The defender alleged further absolvitor, because this bond, albeit it be assigned to George Grant the pursuer, yet it is offered to be proved, that the time of the assignation, the said George was pupil within 12 years of age in his father's family; and so in law it is presumed that it was acquired by his father's means, and is all one as if his father had taken assignation in his own name, and granted translation to his son; and it is clear by the testament produced, that Grant of Ballandalloch's father was tutor to the wadsetter, and during his tutory any right taken by him of sums due by the pupil are presumed to be satisfied by the pupil's means, and to accresce to the pupil, against whom, he nor his assignee can have no action for any particular part, but the whole must come in the tutor's accounts; and offers to prove, if need be, that the tutor intus habuit, being debtor in greater sums to the pupil than this. The pursuer answered, 1mo, The allegeance is no way relevant upon such presumptions to take away the right standing in the defender's person; 2do, The defence is not liquid, and so can make no compensation, albeit his son were expressly assignee as he is not.
The Lords found the defence relevant, unless the pursuer would condescend and instruct that the assignation was granted to him otherwise than by his father's means.”
