Scottish Court of Session Decisions

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

Barbara Grant
v.
Janet Cuthbert

Date: 8 November 1677

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Barbara Grant, being executrix confirmed to her husband, did make payment to Archibald Neilson, her son, of a bond granted by the defunct his father, to him and Janet Cuthbert, his future spouse, and the heirs betwixt them; which failyieing, Archibald's heirs;—whereupon she obtained decreet before the Sheriff against the said Janet Cuthbert, to exhibit and deliver the said bond, as satisfied. Janet Cuthbert raises suspension and reduction, on this reason, That the Sheriff had committed iniquity in decerning her to deliver up a bond of a sum provided to her in liferent by her husband's father before her marriage; which sum he could not uplift, nor the debtor pay, without the life-renter's consent, unless the debtor had seen the sum securely re-employed for the wife's liferent.

It was answered, That the husband was fiar, and dominus bonorum; and the executrix having made payment upon sentence, payment made bona fide should secure her; and the wife ought to pursue her husband's executors to re-employ.

It was replied, That the tenor of the bond put the executrix in mala fide to pay without the relict's consent.

The Lords found, That the husband could not lift, nor the debtor pay, the principal sum, without the wife's consent, or re-employing it sufficiently for her behoof; and, therefore, reduced and suspended the decreet for delivery.

Vol. II, Page 556.