Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Hew Dallas Kennedie, Sheriff-Clerk of Aberdeen, &c v. Sir George Mackenzie of Tarbet
Date: 5 July 1671
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Hew Dallas Kennedie, sheriff-clerk of Aberdeen, &c. having charged Sir George Mackenzie of Tarbet, to make payment of 20,000 merks conform to his bond. He suspends upon this reason, that the bond was conditional, viz. if the gift of Innerallochie's ward and marriage, (the right whereof he had acquired from this pursuer,) should prove effectual and profitable to him; but ita est, this condition was never purified; but to the contrary, a second donatar to the said ward and marriage in foro contentioso, was preferred.
Answered,—They confess the condition; but Tarbet in quantum lucratus est by that gift must be liable to the pursuer: but so it is, by that decreet of preference, there is 5000 merks appointed to be paid to him out of the said ward by the second donatar, and that in consideration of his gift: ergo, his bond must stand good against him as to that 5000 merks, and the pursuer is content to restrict it thereto.
Replied,—The bond can never subsist quoad that 5000 merks; because expressly by the decreet it appears to have been granted by the Lords, in respect of the vast expenses Tarbet was at in defending the plea against the said second donatar; and so in effect he had no benefit by that gift.
Duplied,—He can never be heard to impute the said 5000 merks as the reimbursement of his expenses; because by his bond charged upon, he is bound and obliged to perfect the said gift on his own charges.
The Lord Craigie inclined to find, if Tarbet had uplifted the said 5000 merks, then to decern him in repayment thereof to this pursuer; but if it was yet in the debtor, viz. the second donatar's hands, then reserved action to the pursuer against him as accords.
