Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Duncan Forbes v. Edgar of Weatherly
Date: 31 January 1680
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John Edgar of Weatherly grants a bond to his brother, Mr William, for 500 merks per annum, and, in case he married, he adds 300 merks more,—in all, 800 merks; and, if he have children, then John obliges himself to pay him 6000 merks; and, if he died without leaving any children behind him, then he is to pay him 4000 merks only. Mr William assigns this bond to Nicol Edgar, another brother, and dies without ever being married, and so without children. Mr Duncan, having married Nicol's daughter, craves the 4000 merks provided in eum casum that Mr William should have no children.
Alleged,—The clause is only to be understood if ho had been married, and then had deceased without bairns: but ita est, he was never married, and so the condition never existed.
Answered,—The clause is general, and is opponed, and comprehends casumutrumque. This was not decided, but transacted. It was casus judicis arbitrarius. Vide infra, 18th June 1680, Oswald.
