Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.
Date: Blair of Ardblair, and Isobel Stewart, his Wife,
v.
The Laird of Bethaick
18 July 1671 Click here to view a pdf copy of this documet : PDF Copy
Bethaick being decerned, by decreet of the commissaries, to pay six years' annualrents of the sum of 8000 merks, belonging to the children of the said Isobel Stewart, as part of the sum of £10,000, for which the Earl of Errol was principal, and Bethaick cautioner; the said Isobel did grant a discharge, bearing a receipt of these annualrents, with an obligement to warrant, not only for these years, but for all bygone years since the date of the bond: whereupon having charged the said Isobel, as being distressed, at the instance of her children, as having right, by assignation, from old Sir William Stewart, their goodsire, who was liferenter of the said sum, he did charge the said Isobel, upon the warrandice contained in the discharge granted by her, as said is; which was suspended, upon this reason:—That the discharge, containing a particular sum due, for some preceding years' annualrent only, the warrandice could not be extended to any former years; that clause being only put in terrorem: and the suspender being but a woman, and ignorant of the importance thereof, it ought not to militate against her, to make her farther liable than for the sums received.
It was answered for the charger, That the clause of warrandice was opponed; which not being ordinary, but singular, in that it did extend to all bygone years, since the date of the bond,—and Sir Gilbert Stewart, who was sheriff-depute of Perth, and commissary of Dunkeld, being both witness to the discharge, and having all former discharges in his hands, did transact that whole affair, as intrusted by her;—it was hard now, after fifteen years' time, that the said Isobel's children, to whom she was tutrix and executrix, should distress the charger, and he not have the benefit of the said obligement of warrandice, subscribed by her, being major, sciens et prudens.
The Lords, in respect of the conception of the warrandice, and that it was drawn by the advice of a lawyer, did find that it was obligatory; and therefore found the letters orderly proceeded.
Page 190.
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