Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. IX.
With what Modifications Bona Fide Consumption Saves from Repetition.
John Caldwell v. Christian Jack
1685.
January. Case No. No 47.
An aliment, although erroneously awarded, was held to be fructus bona fide consumpti; and repetition denied.
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A relict having pursued he husband's apparent heir for implement of her contract of marriage, he repeated a summons of aliment by way of defence, upon this ground, that the whole estate was liferented; and the Lords did modify an aliment to him, of which a reduction was raised several years after, as being exorbitant, and proceeding upon misrepresentation, that the wife's jointure was great, whereas it was but an annuity of L. 700, out of which 700 merks, two-thirds thereof, was modified for the heir's aliment.
Answered, 1mo, The Lords do not go back upon modifications. 2do, The bygone years aliment are fructus bona fide consumpti.
Replied: The quota of the modification proceeded upon misrepresentation, and the fructus cannot be thought bona fide precepti et consumpti, seeing the defender had the aliment only by retention and absolviture from the process of implement.
The Lords would not go back to restrict the aliment, and assoilzied from the reduction.
