Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Christian Ramsay and Jo Hamilton, her Husband v. George, Lord Ramsay
Date: 7 January 1664
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George, Lord Ramsay, in December 1661, grants bond to Christian Ramsay, daughter to Mr. Simeon Ramsay of Whitehill, for 3500 merks, with L. 300 of expenses, and L. 10 of penalty in case of failyie. This bond she registers in 1662; and with consent of Jo. Hamilton, saddler, burgess in Edinburgh, her husband, for his interest, charges him to make payment of the same. This charge he suspends; because, 1mo, albeit the said bond bear dated in 1661, yet the debt therein contained is an old debt, due by the suspender to the charger, conform, to a bond long before the act of debtor and creditor; which, at persuasion of Mr. James, now Sir James Ramsay, and Mr. George, advocate, her brother, he renewed to her; and so the defender having taken the benefit of the said act of debtor and creditor, as is notoriously known to the clerk of the bill, no execution can pass against the suspender on this bond; and therefore ought to be suspended. 2do, The very bond charged on, bears an express clause, that it shall not be lawful for the charger to uplift the said money, without the special advice and consent of her said two brothers: she accepted the said bond under that condition. But so it is, they have not consented to the said charge, but, on the contrary, have assisted the suspender in procuring this suspension of the said charge; and that in respect they are afraid that she and her said husband will dilapidate the same; and therefore, &c. This suspension being called, the charger's procurators allege against the said second reason of suspension, as insisted on, that it ought to be repelled, because, 1mo, The charger is married since the granting of the said bond, and has children and a family to maintain; and so in reason cannot be debarred by her brothers from uplifting the said money; especially seeing this clause is to their behoof, they being her nearest heirs. Item, Her husband may trade therewith. But, 2do, for a peremptory answer thereto, there is produced a consent or declaration under her brothers' hands, whereby they declared that their intention in inserting of the said clause, was not to seclude their sister, now charger, from uplifting the same from the suspender, providing she should secure it in some other manner of way, best tending to her advantage, and not dilapidate the same: item, Declared, that if she should take any preposterous course therewith, or sinisterously employ the same, that then this their consent should be null. To which it was replied by the suspender, 1mo, That he opponed the clause in the bond, whereby it was provided, that no time during her lifetime, (ergo nihil refert, as to suspender, whether she be married or unmarried,) she shall uplift the same, without the consent foresaid. 2do, As to the declaration, it is replied, that the same is no positive consent; but allenarly their intention of inserting the said clause. 3to, It bears a clause irritant, videlicet, that if she take any preposterous course to her prejudice, that then the same shall be null. Whereto it was duplied for the charger, that she opponed the foresaid declaration; and as to the clause irritant, it says nothing, unless the suspender were able to subsume, (which he is not,) that she has taken any such dishonourable course. In respect whereof, the letters ought to be found orderly proceeded.
All which the Lords having considered, they find the letters orderly proceeded, and decern the suspender to pay to the charger the said 3500 merks. Item, Suspend the letters simpliciter as to the 300 merks of expenses, and L. 10 of failyie.
Charger, Mr. Thomas Baird.Alt. Mr. Thomas Lermonth.
Signet MS. No. 57, folio 18.
