Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 29 June 1687
John Wardlaw of Abden v. Sir Henry Wardlaw of Pitrevie
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The reduction, ex capite fraudis et circumventionis, at John Wardlaw of Abden's instance, against Sir Henry Wardlaw of Pitrevie, was debated; viz. that old Pitrevie, to whom the defender is served heir, being the pursuer's tutor and curator, he took no care of his education, but sent him to London under George Wardlaw, a most unfit governor, where he was trepanned by Sir William Ballantine, &c. to marry a common whore; and then George (under, the pretence that it was better his cousin Pitrevie should succeed to him, than his spurious issue,) procured from him an absolute disposition to all his estate, in land and money, worth 100,000 merks, giving him only 4000 merks by year; and to show that it was a premeditated contrivance, the lands are bounded, and the sums and dates of the bonds are all particularly inserted in this disposition, though it was done at London. And then he sent him to Holland, and procured a ratification of it there, when he was past 21 years; and having brought him home anno 1670, when he was 23 years old, he, at Dumfermline, impe-trated from him another disposition of all, and restricted his annuity to 3000 merks a-year; and that the pursuer having complained of this to the Parliament in 1681 and 1685, they remitted it to the Session. And they were reducible deeds, the first being taken from a minor by his sole intromitting curator, sine quo non; and the second was ante rationes redditas, and a continued tract of the same cheat, and worse than Cornelius Neilson's to Bonar's Heirs, mentioned 7th December 1682.
Answered,—He was a perverse boy, and riotous, refusing to stay at home; and he choosed George Wardlaw himself, though he had at first Mr Robert Melvil, his own uncle, and a grave man, to be his tutor. 2do, That the first disposition was acknowledged to be but a trust; but the 2d at Dumfermline was most onerous, and adjusted by the Lords Preston and Cranston, his friends; and if he and his mother (who has a great liferent) live long, it will be a dear bargain to Pitrevie. 3tio, It is homologated since, by his discharging the annuity quarterly, and a new disposition since his complaint in Parliament, revised by Mr David Dewar, advocate, his good-brother. 4to, Pitrevie bruiks by valid rights granted by a major not declared an idiot; and so they cannot be taken from him; and Dury, 5th July 1635, Leslie, shows, that the Lords rejected a reduction on qualifications of circumvention stronger than thir. 5to, Pitrevie cannot count now for his tutory, his father being dead and discharged, and so presumed to have given up all his instructions. But it was offered to be proven they were yet in his own hand. The President desired to know the true value of the estate disponed, that he might consider the lesion Abden had by the bargain.
This cause being advised on the 17th February 1638, the Lords sustained the many reiterated acts and contracts to purge the cireumvention; and assoilyied.
