Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Sir John Ayton
v.
the Laird of Innernytie

1682. Ferbruary.

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David Stewart having assigned to Sir John Ayton, his brother-in-law, failing lawful issue of his own body, a 4000 merk bond due to him, the cedent, by the Laird of Innernytie his brother, with a provision, That it should be lawful to the cedent to uplift and dispose of the money; and a clause declaring the delivery of the assignation equivalent to the delivery of the bond, which was not then in his possession, but in the hands of Garntully his uncle: he thereafter called for the said assignation, and gave another of the foresaid tenor in lieu of it, with the burden of a thousand merks to be paid to a bastard brother, who, by David's order, three days before his death, burnt the first assignation. Sir John Ayton having raised, after David's death, an action for exhibition and delivery of the bond and assignation, it was alleged for Innernytie, That the assignation bore no clause dispensing with delivery. 2. It having been delivered as the clause imports, the recalling of it infers a revocation of the assignation. 3. It was offered to be proven by witnesses, that Ayton having desired David, when on death-bed, to give up the assignation and bond, he refused, at least gave no answer, but turned him about to the wall; and that he said to others, that the granting of the said assignation, which would have destroyed his father's family, troubled him more as any thing he ever did; but now he had recalled it, and had it in his own custody. Answered for the pursuer, Though there was no express clause dispensing with the delivery, yet,—the cedent having a rational cause for keeping the evident, viz. a reserved power to uplift the money, and the sum not simply assigned but tailyied to Ayton, failing heirs of David's body, who are instituted by being in conditione positi,—there was good reason for the assignation's remaining with the cedent till his death; and, though it bear delivery, that hath only been symbolical for want of the bond: so that the recalling of it could import no revocation; nor can the effect of writs be taken away by the depositions of extrinsic witnesses, especially as to words omitted long after signing. And the Lords, in the case of Thomas Kincaid against Stark, December 11, 1679, sustained a disposition of lands, reserving a liferent and power to alter, though it had no cause of disposing, &c.; and, if David had inclined to alter, he would have destroyed the second, as well as the first bond. Replied, The assignation, by its conception, is a present right, though with a resolutive condition, in case of children. This plea was agreed and taken up before interlocutor.

Page 19, No. 100.