Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 18 December 1686
The Countess of Kincairden v. David Murray of Stanhope
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The Countess of Kincairden's bill against David Murray of Stanhope, her son-in-law, and his answers, are advised. She represented, that, by her daughter's contract of marriage with Stanhope, she assigned him to an infeftment of 12,000 guilders for her tocher: and was obliged to instruct that these 12,000 guilders to which she assigned him, were a part of 25,000, due to Van Villiers; and to get a valid disposition to it from her brother Somelsdyck Van Arsen, and to obtain a decreet of preference before my Lord Cardross; and that she had done all this, and yet Stanhope had raised inhibition on the contract, and an arrestment of all her jointure: and, seeing she had performed, craved the Lords would annul the inhibition and arrestment.
The Lords recommended to Drumcairn to compare the contract with the papers produced by the Lady; and, if she had implemented all, allowed him to recal the inhibition and arrestment.
This summary way, without a process, was yielded to the Lady's solicitation. But a hearing, in presence, being obtained on the 20th of January 1687, it was debated, that the Lady had not fulfilled the foresaid three conditions adjected to her obligement in the contract of marriage.
The Lords repelled the allegeance that the right is not habili modo transmitted to Somelsdyck by the nomination of the testament produced; which they sustained. And repelled the other allegeance, that, the right being only a right of relief, there is no distress nor payment instructed, in regard of the decreet of preference,—the Countess of Kincairden always producing the decreet. And, before answer to the allegeance anent the import of the Countess's obligement in the contract of marriage, ordained the commoners, and the writer of, and the witnesses in the said contract, such of them as are alive, to be examined, if it was the meaning of the parties that the obligement granted by the Countess for obtaining a decreet of preference to my Lord Cardross, should extend to the tenement and yards in Culross, or not. But there seemed to be no dubiety in the clause.
There was a bill given in against this by Stanhope, which was referred to Carse and Drumcairn; and they having reported it on the 25th of February, the Lords adhered to their former interlocutor. And Stanhope reclaiming again by a bill, containing some reflections on the Lady, the Lords resented it, and referred it to the President, to consider how far the papers produced (the originals were in Dutch,) proved Van Arsen was cautioner, and that this 12,000, guilders was a part of the 25,000; and Mr William Stirling's oath was taken on the last point, as one of the commoners.
