Scottish Court of Session Decisions

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

Alexander Erskine
v.
Reynolds

Date: 17 June 1676

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In a pursuit at Erskine's instance, as having a right to a bond by progress, granted by Alexander Reynolds to Elizabeth Guthrie, his future spouse; against the children of the said Alexander Reynolds, as being locupletiores facti by their provisions made to them by their father;—it was alleged, That that could not be sustained as a passive title, to make them liable to all their father's debts, being neither heirs nor executors; and any bond of provision made to them, cannot be taken away but by a reduction upon the Act of Parliament, 21st King James VI.

It was replied, That the pursuer, being a lawful creditor, hath his election to pursue either heir or executor, or any children having got provision from him after he was debtor,—all provisions made to children after debt contracted being liable to the creditors.

It was Duplied, That the father having an opulent fortune when he granted the provisions to his children, his heirs and executors can only be pursued who represent him.

The Lords ordained the defenders to give their oaths if they were locupletiores facti by bonds of provision; reserving to them all their lawful defences, that their father had an opulent estate when he granted the same; and that his heirs, executors, or vitious intromitters, being pursued, might be made liable: and, upon the first of July thereafter, found, that the defenders should condescend upon their father's estate.

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