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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Womberly, Englishman, v Charles and Sir Mark Kers. [1673] 1 Brn 687 (28 June 1673)
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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.
Date: Womberly, Englishman,
v.
Charles and Sir Mark Kers
28 June 1673 Click here to view a pdf copy of this documet : PDF Copy
Womberly, having married the sister of Charles Kers, and having gotten bond from him for payment of four hundred pounds sterling, whereupon he did charge and serve inhibition, which was Suspended, upon this reason:—That no letters of horning could be directed, until Womberly's son, begotten of the said marriage, should be provided thereto by an English security. But so it is, he never was provided, nor could, being dead before the subscribing of the bond; and, therefore, it was urged for Sir Mark Kers, who had bought the lands from Charles, granter of the bond, that the inhibition, being served contrary to that condition of the bond, might fall, and found not to affect his lands.
It was answered for Womberly, That the condition of the bond being to secure his son in the sum of money contained in the bond, in case he were alive, and should attain to such an age, the condition was purified by the death of his son before he served inhibition, or raised any letters upon the bond; which was lawful for him to do.
It was replied, That albeit the son was dead, yet he ought to have pursued a declarator to hear and see it found that the condition was purified; without which he was in mala fide to raise letters summarily, and serve inhibition.
The Lords did find no necessity to raise a declarator, but that the charger proving that the son was dead, he might lawfully raise letters of horning and inhibition, and execute the same, seeing the condition was only in favours of the son, and the bond was given as a part of the mother's portion and tocher; but that cause being controverted, and it being alleged for Charles Kers, that the true and only cause for granting the bond was to make a provision for the son; which was denied by Womberly.
The Lords, before answer, did ordain the communers, and writer, and witnesses in the bond, to be examined.
Page 347.
The electronic version of the text was provided by the Scottish Council of Law Reporting