Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Henry Stewart of Beath
v.
Mary Bruce and Her Husband

Date: 8 January 1669

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Henry Stewart of Beath, pursuing Mary Bruce, his mother, and her second husband, for his interest, upon a bond granted by her and the said Henry, the pursuer's good-dame, whereby each of them were obliged to pay 300 merks during her lifetime; and, in case of any of their deceases, to pay the whole 600 merks; which, in respect of the good-dame's decease, the said Mary was pursued for:

It was alleged, That the bond being granted, not for an aliment, but for payment of the said Henry's debts to the creditors, that he, having renounced to be heir to his father, and so being liable personally to the creditors, he could not seek payment, it being causa data causa non secuta.

The Lords repelled the allegeance, and found, That the debt due to the creditors was only the impulsive cause; but the obligatory part being simple, without any condition, and the persons bound being liferenters of the pursuer's whole estate, the bond was in effect for aliment, the granters not being concerned in the payment of the creditors; but found, that the mother was not personally liable, but that the sum was due out of the first and readiest of the estate, the bond being so conceived.

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