Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Hary, &c Straitons v. their Brother, the Laird of Lauriston
1677 and
1679.
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1677.November 8.—A father dies, leaving several children: he grants a bond of provision, to be paid by his eldest son to the younger, and ordains their portions to be paid to them at their age of fifteen years, or at the next term after their marriage. Quæritur in whose option this alternative is. It may seem to be introduced in favours of the eldest son, who is debtor; for, in alternativis obligationibus, electio est debitoris; especially here, that if they die before the term of payment, it is provided their portion shall fall in return, and accresce to the eldest. Yet, others think it is in the option of the children, that, either at fifteen or at the next term after their marriage, they may call for their principal sum; for the annualrent is unquestionably due to them for their aliment: otherwise (say they) this inconvenience will follow, that it shall force them, immediately after they are fifteen, if their brother refuse payment, to anticipate and run headlong on marriage, and so the clause would abridge libertatem matrimonii and that mature deliberation which is requisite in a case of so great concern; which is absurd, and contra leges et bonos mores. And they make a distinction inter alternativa et alternata, which I conceive not; only we say, in patronages, vicibus alternatis, not alternativis.
Advocates' MS. No.650, § 4, folio 305.
1679.January 21.—In the actions pursued by Hary, &c. Straitons, children of the second marriage to the Laird of Lauriston, against Lauriston their brother of the first marriage, for payment of their portions natural, or provisions due at their marriage, or age of fifteen,—vide 8th November 1677,—the Lords found the election of their alternatives was debitoris; and therefore that their portions were not due at fifteen, but only at their marriage; which was the election made by the heir, their eldest brother, who was debtor. This decision was upon a report.
