Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Margaret Home v. Margaret Smith
1673.
June.
Click here to view a pdf copy of this documet : PDF Copy
In an action of reduction pursued by one Margaret Home against one Margaret Smith, for reducing of a disposition of some lands in Dunce made to the defender, this reason was mainly insisted on, That the said disposition was, by act of Parliament in 1621, null, being made to a conjunct person, (videlicet, to the granter's sister-in-law, whom the common law æquiparats to brothers and sisters in this case,) without any onerous cause, in defraud of lawful creditors and their diligences. Vide l. 27, C. De Donationibus.
Answered, The act of Parliament 1621, by confident persons, means only fathers, brothers, and sons, and not brother and sister-in-law, and such remote degrees; neither does the civil law sequiparat them in this case.
(Yet the Lords have found brothers-in-law confident persons, which is just our case here; See Dury, 23d March, 1624, Duff and Kelly: but did not find an uncle and nephew so; 28th January, 1625, Levinston.)
Replied, That this were to open a door to all fraud and collusion; and that, by the common law, the prohibition that is in consanguinity, either for marriage, diction of testimony, &c. is extended to all the same degrees of affinity, the affection being oftimes the same.
The Lords ordained the defender to condescend upon the onerous causes of her disposition; notwithstanding that it bore to be granted for onerous causes, in which cases strangers are never burdened with any farther probation: so that upon the matter the Lords inclined to find her a conjunct person.
See M'Kenzie's observes on the act of Parliament 1621, page 66, where they found her a conjunct person.
