Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Fotheringham of Poury v. Mr William Stirling, Writer to the Signet
1693 and
1694.
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1693. February 16.—The Lords found Poury could not quarrel Mr William's rights, on fraud and latency, on the Act of Parliament 1621, as being brother-in-law; seeing his debts were contracted before Poury's debt, and that he was creditor to Francis Laury, the said Marion Watson's first husband; whereas Poury was only creditor to her, and Alexander Rait, her second husband; and any faculty she bad to affect her husband's lands with 10,000 merks of debt was only from John Laury, her son. And the Lords found the qualifications of trust or fraud against Mr William's infeftment were not sufficient to reduce his right, but only to restrict it; the same being proven by his oath, or otherwise.
Vol. I. Page 560.
1694. June 13.—The Lords advised the case between Fotheringham of Pourie and Mr William Stirling, writer, mentioned 16th February 1693; and found the qualifications of fraud condescended on by Pourie not sufficient to reduce Mr William's rights; viz. that it was between conjunct persons, and that he had been the agent, and the disposition was on the matter omnium bonorum; seeing what was not disponed to Mr William was thereafter disponed to other creditors, and that he kept up his rights, and forbore to take infeftment till Provost Rait and Mary Watson were broke: For the Lords saw Mr William instructed scripto the onerous causes of his right, and had deponed he had no trust of her affairs as agent then, and that there was no collusion; but the debts were just and due, and standing out unpaid; and that he was not bound to inquire into their condition, Pourie's debts being all contracted after his. But found it relevant, if Pourie would prove, by Mr William's oath, that he forbore to take infeftment, on purpose to insnare others to lend them money when he knew them to be broke; for fraud, being actus animi, unless qualified by very pregnant presumptions, can only be proven scripto et juramento. And yet it is hard such sinister designs should escape unpunished.
