Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
John Daes v. Mr James Daes, his Brother
Date: 14 December 1677
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Mr John Daes having charged Mr James Daes, advocate, his brother, upon his bond of provision for 6000 merks, Mr James raised suspension and reduction on this reason, that he granted the said bond, as its narrative proved, intuitu, and in contemplation of a disposition their father had given him of his heritable and moveable estate, reserving his own liferent; and yet Mr John, the charger, had got the most of these moveables disponed to Mr James: and so he behoved to have retention of this bond of provision, condictione, ob causam datorum causa non secuta, there being a σνναλλαγμα, and a mutual obligation, where the one was the causa finalis of the other, and he could not perform unless he had got wherewith. Answered, Condictio causa dati was mistaken: since he was not the person who had disponed the heritable and moveable estate to Mr James, his want thereof could not compense Mr John's portion, that being inter diversas personas. Yet the Lords found Mr John Daes, the charger, could not have both the sums contained in the bond, and also the moveables; but if he take himself to the bond, the disposition of the moveables must be imputed in part of the bond, in regard the bond is given in satisfaction of his portion natural.
Then Alleged for the charger,—That none of the moveables he had got could be ascribed to deduce off any part of his bond; because it was offered to be proven, that they were none of those moveables disponed to Mr James, which was a part of the onerous cause of the granting the bond of provision charged on; but were a part of the father's reserved liferent, and of the moveables he had acquired since June 1669, which, by a contract passed betwixt the father and Mr James, he permitted his father to dispose upon at his pleasure; and so might give them to his second son, Mr John, as well as to a stranger. This was sustained as relevant.
Then Alleged for Mr James, the suspender,—That even thir moveables behoved to be affectable for the father's debt, notwithstanding of his gratuitous disposition thereof to his son, after the contracting these debts. Answered, He could not be heard; because, by an agreement betwixt his father and him, he had undertaken all the debts. Replied, It was only conform to an inventory; and he had been necessitated to pay debts not contained therein. Duplied, By a writ under his hand, he had undertaken to relieve his father of all debts. This duply, on the 13th of February, 1678, was found relevant; and, before answer to the rest, we were ordained to produce the haill writs founded on. See the informations and bills in this cause beside me.
Advocates' MS. No. 686, folio 312.
[See the subsequent part of the Report of this Case, Dictionary, p. 14848.]
