Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Duke of Lauderdale
v.
Lord and Lady Yester

Date: 26 January 1676

Click here to view a pdf copy of this documet : PDF Copy

The Duke of Lauderdale having disponed his whole estate to his daughter, the Lady Yester, by a disposition before her marriage, and also by her contract of marriage, both containing a reversion upon a rose-noble, by himself, or the heirs-male of his body, he used an order, and obtained declarator in foro; and, having charged my Lord and Lady Yester to renounce and resign accordingly, he offered a draught, which he required to be subscribed for implement. They gave in a bill of suspension upon obedience; and therewith subscribed a renunciation and resignation.

The Lords, having appointed the suspension to be discussed upon the bill, as they do ordinarily, whenever the charger requires it, the charger having produced the draught as his special charge,—it was alleged for the suspenders,—That they offering a subscribed renunciation for obedience, they were not obliged to object against the charger's draught; but their reason was unquestionably relevant, and instructed by the renunciation produced, unless the charger could object against it.

It was answered,—That, in a matter of this importance, of the Duke's whole estate, he was not obliged to accept of a renunciation, unless it were subscribed before such persons as he would desire to be present; that there might be no question of the truth of the subscription, by the witnesses disowning the same: so that this renunciation, being only to be considered as an unsubscribed draught, and two draughts being offered, the charger was ever allowed to make his own special charge.

Which the Lords sustained; and allowed the suspenders to object.

The suspenders objected, That, by the charger's draught, the Lord Yester was required, not only to consent to his lady's renunciation, who is fiar, but to take burden for her; which, though oft-times it be in writs of consent, yet, without express consent, the husband is not obliged to take burden for his wife; whereby he would become surety for all her deeds prejudicial to the renunciation, though they were done after his death.

It was answered, That the clause of taking burden, being ordinary, ought to be inserted; and, that the charger was willing that it should be declared, that it should import no more but the authorising my lady, as her husband.

The Lords ordained the clause to be thus expressed:—“That my lady, who is fiar, should renounce and resign, with consent of my lord, as husband, authorising her; and he, for himself, for any right he hath by the disposition or contract.

Vol. II, Page 404.