Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

Thomas Aikenhead
v.
Janet and Marion Aikenheads and their Husbands

Date: 28 January 1665

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Umquhile Alexander Aikenhead, uncle to Thomas Aikenhead, and tutor nominated and confirmed to him, and having granted the receipt of several bonds granted to umquhile Mr Thomas Aikenhead, and assigned by him to his son Thomas; the said Alexander, having received payment of the said sum belonging to his said pupil, the said pupil pursues Janet and Marion Aikenheads, only daughters and children to the said Alexander, as heirs and executors to their father, and upon the rest of the passive titles, and their husbands for their interests; the said Thomas, the pupil, insisting against the said Janet Aikenhead and her husband, as successor by the lucrative title, post contractum debitum, in so far as her father disponed to her certain tenements of lands and other heritable sums or rights.

It was alleged for the defenders, That she could not be liable as successor, 1mo. Because, hoc dato, that her father had disponed to her any heritable sums or tenements for love and favour, and for her provision; the pursuer behoved to pursue reduction thereof, via ordinaria, upon the Act of Parliament. 2do. She could not be liable, because any dispositions made to her and her husband were for onerous causes, intuitu matrimonii, by contract of marriage, or otherwise. And the said rights cannot be quarrelled, nor fall under the compass of the Act of Parliament; as was found in the dase betwixt Simpson and Liddile.

To which it was replied by the pursuer, That the defender's father being both tutor and debtor to him, and thereafter making disposition and assignation to the defender's own daughter, one of the apparent heirs-portioners, and who was alioqui successura; the disposition granted for love and favour, without any onerous cause, must make her liable as successor; at least, she and her husband must be liable to the pursuer in quantum lucrati sunt, which will exceed the debt, acclaimed by the pursuer; who, in all law, is most favourable; his tutor having intromitted with his means, which the said tutor could not dispone to his own daughter and apparent heir; but she must be liable, ut supra: and there is necessity for the pursuer to reduce the said rights, seeing he insists against his upon the passive title, as successor.

To the second, it was answered, 1mo. The dispositions and rights whereupon she insisted as successor, were not made by the contract of marriage betwixt the said tutor, and the said John, her husband: which husband did marry her without her father's consent; and there was no contract of marriage. 2do. Albeit the dispositions and rights had been granted by the contract of marriage, or intuitu matrimonii, yet, notwithstanding thereof, she still would be liable as successor; the said rights being granted for love and favour, and for her provision: And the defunct being debtor to the pursuer, could not dispone his own means to his daughter, who was to succeed; who, at least in so far as she had got benefit, might be liable to the pursuer, a most lawful and favourable creditor.

The Lords, before answer, ordained the contract of marriage to be produced; and found the defences proponed for the other heir-portioner,—viz. that the pursuer was debtor to her for her aliment,—relevant, and appointed count and reckoning; but the main question was not decided till afterwards.

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