Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1685 and 1686.
Sir John Ramsay of Whitehill and Anna Carstairs v. Carstairs of Kinneuchar
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1685. November 24. —The case of Sir John Ramsay of Whitehill and Anna Carstairs, his spouse, against Carstairs of Kinneuchar, was debated in præsentia and decided. The Lords considering that, by the decreet 1664, the aliment is constituted to the mother and daughter indefinitely, (without declaring their shares,) and that it is thereby appointed that the wife's infeftment shall be as effectual for the said aliment as for her jointure in case her husband were dead, (he being furious;) they found the mother could not restrict the aliment in prejudice of her daughter, after her marriage, by her contract of restriction, but that the pursuers have right to 700 merks, as the equal half of 1400 merks, for all years after the marriage; and sustained the defence, that the mother did aliment the daughter, and likewise the allegeance, that the daughter, pursuer, is executrix to her mother, and so is liable to warrant the transaction made by her in so far as the executry goods extend: and also sustained the allegeance, that Sir John Ramsay has homologated the said contract by his discharge: and assigned a day for proving. And the discharge being produced, and advised by the Lords on the 16th of December, they found the pursuers had homologated the contract of restriction by granting that discharge; and therefore assoilyied the defender from any superplus aliment acclaimed more than is contained in the contract of restriction. Vide more, 2d January 1686.
Vol. I. Page 377.
1686. January 2.—Sir John Ramsay gave in a bill reclaiming against the interlocutor supra, 24th November 1685, alleging that he and his Lady had only discharged what was due to her as executrix to her mother, but not the half of the annuity due to her jure proprio, and so had not homologated the contract of restriction.
The Lords refused the desire of this bill. The President was clear; though he had been Sir John Ramsay's advocate in this same cause, and gave him hopes that he might gain it.
