Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Johnston v. Lewis and Sara Johnstons
Date: 28 December 1694
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The pursuit was for the remainder of his portion disponed to him by his father in his contract of marriage. Alleged,—Posterior to that obligement the father took a bond for 1700 merks to himself in liferent, and you in fee, and which must be ascribed in part of payment of the debt he was then owing you; seeing debitor non prœsumitur donare. answered,—That brocard takes not always place, and is elided by stronger presumptions. And here the sum of the contract of marriage was suspended during the father's life; and so this substitution cannot be in implement thereof, because that were to make him pay before the term. This the Lords repelled, because both of them had one term, viz. the father's decease.
The second qualification was, That, as his father's estate increased, so he augmented his children's portion, and gave the other two more than this son; and, if this be not construed a gift, then he would not get any thing but just what was provided in his contract; and the rest would be more unequally provided than he; and, this being conjectura de voluntate defuncti, he lived many years after this; and, if he had designed it for payment, he would have by some writ declared so. The Lords, in this circumstantiate case, found it ought to be esteemed a distinct liberality and donation, and not to be imputed in payment of the preceding debt; but ordained the circumstances to be engrossed in the interlocutor, that it might not enervate the maxim founded on the presumption in other cases.
