Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Sarah French v. the Earl of Weymes
1677 and 1679.
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1677.July25.—Sarah French, as executrix-creditrix, confirmed to Weimes, her husband, pursues the Earl of Weymes for payment of 100 merks in his hands.
Alleged,—Non constat her husband was dead, and so she has no interest to claim implement of her matrimonial provision till then.
Answered,——It is jus tertii to the debtor: he shall be secured at all hands. 2do, Her husband went to the wars six years ago, and died there; now it is impossible for her to prove he is dead, since she cannot bring witnesses out of France,
This went to the Lords' answer; and they very equitably found, that she, in reason, ought to be burdened with no more but to prove that it was six or seven years since he went out of the country, and that he was tentus, habitus, et reputatus dead in vicinia where he had lived, and that the bruit and report of the country was of his death; for, in effect, there was no more either possible or prestable to her. Yet the axiom of law runs,—Quod unusquisque præsumitur vivens nisi probetur mortuus. See Durie, 25th June 1622, Erskin against Stevin; and Mascardus and Vesembec there cited. See thir parties, 18th January 1679.
Advocates' MS. No. 617, folio 295.
1679.January 21.—In the case of Sarah French against the Earl of Wemyss, (25th July 1677,) the Lords, having advised the probation, found the fame of her husband's death sufficiently proven, and therefore decerned the Earl to pay the said sum to her as relict and executrix-creditrix on her contract matrimonial. After which, Alleged, the debt was not yet proven, against him. Wherefore a day is assigned him to depone. 2do, David Wemyss compears for his interest, and craves to be preferred, as he who was assignee to sundry debts owing by her husband, and had arrested this money, and obtained a decreet against the Earl of Wemyss to make forthcoming. Alleged,—Both his assignations and the ground of debt were null, some of them wanting date, others of them wanting writers' names and witnesses.
Vol. I. Page 35.
July 24.—In the cause pursued by Sarah French against the Earl of Wemeys, (18th Jan. 1679,) Forret having reported to the Lords the competition between her and David Weymes, the Lords preferred her, both in respect of the nullities in his rights, as also because she was a privileged creditor, as relict and executrix, and had a tacit hypothec. Vide l. un. C. de Rei uxorice Actione.
Vol. 1. Page 52.
Anent Irritant Clauses, de Non Alienando.
Where a charter bears a feu-holding, but with a clause irritant de non alienando without the superior's consent, and, in case of alienation, that the feu lands shall return to the superior; this conventional irritancy being committed and “incurred by an alienation, it makes the fee open to the superior; and a liferent or other base infeftment granted indeed prior to the said alienation, but not confirmed, will not be able to defend against the superior or his donatar; because, by an alienation, this, conventional irritancy makes the fee to return, tanquam optimum maximum, as well as the legal irritancy by recognition in ward lands would do. And Newton found this conventional irritancy more pregnant to produce this caducity and casualty to the superior, than the legal one; and this, notwithstanding that it was offered to be proven, that the right was returned again in the person of the apparent heir of the analyier. For, though a disposition made ab initio, by a vassal to his apparent heir, does not infer recognition; yet it being once disponed to a stranger, the returning it to the person of the disponer's apparent heir does not purge recognition, nor prejudge the superior.
Vol I. Page 52.
Anent Recognition.
As the disponing of ward lands, without the superior's consent, infers recognition, and a charter granted a me and not confirmed, is null in law; so it maybe queried, where the superior subscribes the said charter a me with his own vassal, if that will be equivalent to a confirmation, so as to hinder the incurring of the recognition. Some think it will, though, regulariter, a seasine taken upon such a charter is null in law; (and the nullity of a seasine does not hinder but, by taking that seasine, recognition is incurred, quia vassalus contempsit dominum, et fecit quod in se est; though Craig be of the contrary opinion;) and such a subscription seems not to be habilis modus of avoiding recognition, which is only by a resignation in the superior's hands, or by a confirmation: yet any consent of the superior's, adhibited either before or after, stops recognition, if it be before the gift. Of old, the Kings of Scotland, used to give their ward vassals a small paper, containing, in few lines, a license to them to dispone upon their lands; which license stopped that odious casualty of recognition.
Vol I. Page 52.
Anent Cautioners.
There is a bond granted by one as principal, and others as cautioners, for payment of a principal sum; and when it comes to the obligement for payment of the annualrent, it only binds the principal debtor; which is the style of many bonds, as they use to be drawn and conceived in the West-country. A cautioner being charged upon a bond thus conceived, both for principal and annualrent, he suspends on this reason, that the obligement for annualrent only ties the principal.
Answered,—This conception is but a mere mistake, and it is contrary to the general custom and universal practice received in this kingdom.
Replied,—They offered to prove it was the custom in the west, and it was the general meaning of parties there only to bind the principal for the annual-rents, and not the cautioners; because, if the principal do not pay the annual-rents duly, then you may call for your principal sum: and this is against no public law, and so is a lawful paction: and consuetudes are local, and derogate from the municipal customs; et, in dubio, mos illius regionis ubi res agitur, is attended. L. 34 D. de R. J.,
This was debated, but not decided. Some of the Lords inclined to sustain the custom, if it were proven.
Vol. 1. Page 52.
Anent Bonds of Corroboration.
Where a bond of corroboration is charged on, and the principal bond which is corroborated is not yet extant, or not produced, quœ, if the bond of corroboration be valid by itself alone, without the principal. Videtur quod non; for nan creditur referenti nisi constet de relato; et, sublato principali, tollitur accessorium. Yet I would think the corroboration binds him to pay the debt, though the first bond, in corroboration whereof it was granted, were perished; and it burdens the debtor to prove that the first bond is extinct, cancelled, and retired, by payment.
Vol. I, Page 53.
Anent Testaments..
It was queried if a testament, whereof the dead's part in the inventary exceeds £100 Scots, (for, if it be within that, there is little doubt,) be only subscribed by one notary, if it be null by Act 1579, requiring two notaries and four witnesses to all writs of importance, which is interpreted to be writs above £100 Scots. Some thought it valid, because ultimaœ voluntatis liber debet esse stylus, ct liberum quod non iterum redit arbitrium. L. 1 C. de S. Sanct. Eccles. 2do, By Act 1584, one minister is declared enough; ergo also one notary. Others thought it null; and that the argument from a minister to a notary was not good, the law reposing more confidence in a minister's faithfulness than in a notary's.
The Lords indeed have found contracts of marriage, subscribed only by one votary, valid, if marriage hath followed thereupon; Durie, ult. February 1637, Lockhart; ult. January 1639, Dundas.
The Lords found a testament privileged; and that it needed not two notaries and four witnesses; Hadd. 18th January l623, Boog against Hepburn. See Stair, tit. 30, and infra, 23d June 1680, Ogilvie.
