Scottish Court of Session Decisions

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

Mr William Weir
v.
Edward Ruthven

Date: 6 December 1678

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Mr William Weir, as assignee, by Patrick Ker, to a bond granted by the deceased Earl of Bramfoord, of 5000 merks, pursues a declarator against Edward Ruthven, that the Earl having been forefault during the troubles, his forefaulture was rescinded, and his estate established in the person of Edward Ruthven, his grandchild, by his eldest daughter the Lady Forrester; that therefore the estate of the Earl should be affected with this debt, by apprising or adjudication.

The defender alleged Absolvitor; because, by a special Act of Parliament, his grandfather's estate was established in him, without mention of his debt, so that, in effect, he was made donatar to his grandfather's forefaulture; and it is sure, the king or his donatar is liable for no debt, unless it had been perfected by infeftment or confirmation from the king.

The pursuer answered, That there was no gift of forefaulture, which could only be given by the king. But it is clear, by the Act, that the Earl was restored, not by way of grace, but by justice, as having been unjustly forefault for those acts which he did by the king's command, as a loyal subject. And though the Parliament, by a special Act, qualifying the restitution, to preserve the Earl's memory and estate, which would have fallen to his two daughters, and settled the same in the person of Edward, his grandchild, and ordained him to take the name of Ruthven; yet the settling of an estate in this manner, extending both to the Earl's real and personal estate, can never be understood with exclusion of his debt, unless it had been so expressed, it being contrary to material justice: But the settling of an estate being nomen universitatis, not by way of gift, but by way of justice, must be understood cum suo onere.

Which the Lords sustained, and found that his estate might be affected with his debt.

Vol. II, Page 652.