Scottish Court of Session Decisions

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

Moubray
v.
Spence

Date: 26 June 1672

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In a reduction of a disposition of lands, at the instance of Moubray against Spence, to whom one —— Stewart disponed some lands in Orkney, upon the Act of Parliament anent Dyvors, as being made to Spence as a confident person, in so far as he was intrusted and employed as agent here at Edinburgh for Stewart in all his business; and therefore, besides the disposition bearing for an onerous cause and sums of money received;—it was alleged, That he ought to condescend and instruct the onerous cause for which the right was made.

It was answered for the defender, That he was not such a person as did fall within the meaning of the Act of Parliament; which was only such confidents who, ratione sanguinis, or by reason of the nearest relation of affinity, such as utricus et gener, or a good-brother, had interest in the disponer; whereas the defender had no relation or contingency of blood, and was only called as an agent and ratione officii.

The Lords found the answer relevant to assoilyie from the reduction, unless the pursuer would prove, scripto vel juramento, that, notwithstanding the disposition did bear for an onerous cause, yet truly there was none. For, as to former decisions, it was never decided, but in regard that rights were made to persons related by consanguinity or affinity, as said is.

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