Scottish Court of Session Decisions

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

The Laird of Clackmannan
v.
Margaret Sydserfe, and Mr Mark ker, her Husband, for his Interest

Date: 10 June 1673

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The said Margaret, and her husband, having obtained decreet against Clackmannan for payment of the annualrent of three thousand merks, upon the ground that Mr Darleith, her first husband, by contract of marriage, was obliged to provide her to the annualrent of all sums of money that he should conquest during the marriage, did suspend, upon this reason:—That the decreet could not secure to make payment; because, by the bond, Margaret Darleith was fiar of that sum, and her father only liferenter; so that her bond ought either to be reduced, or a declarator intented against the said daughter, and the heir of her father, to hear and see it found, that, notwithstanding that the father had taken that bond in name of his daughter, in fee, yet that could not prejudge his wife of the annualrent thereof, the bond being dated after the contract of marriage.

It was replied, That that decreet not being libelled in the terms of a declarator of conquest, but only concluding payment against the debtor, and albeit the children of Darleith, the father, were called, yet none of them compeared, being minors, so that the fee of that sum could not, hoc ordine, be taken away from the daughter to whom it was provided.

The Lords, considering the case of a bond taken by a father in name of a child, for their provision, and all portion natural, if that should be interpreted conquest, which bears the right of fee to have been in the person of the defunct when he died; or, if the daughter be prejudged of the liferent of the fee, ought to have relief of the heir,—they did find the letters orderly proceeded against the debtor, against whom the decreet was given, wherein both the heir and fiar were called, as being equivalent to a declarator of conquest; but suspended all execution until the fiar and heir were of new cited, as in a double poinding, that the point of conquest being decided in law, and the relief of the debtor and heir might be secured, and the interest of all persons decided by a decreet, bearing compearance.

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