Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Carnegie of Phineven v. The Earl of Panmuir and Mr Harry Maul, his Brother
Date: 22 January 1695
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This was a reduction of an assignation, granted by the deceased Mrs Mary Maul, of her portion, to Phineven, and of his decreet in foro reducing Strathmore's assignation, and declaring his right to the sum, at Panmuir's instance, as having got a posterior right thereto from Mrs Mary. The great difficulty was, how to get over the res judicata; and the Lords having read the decreet, they found only compearance made for Strathmore, and none for her; and, therefore, declared it was in absence quoad her and her posterior assignee, notwithstanding he produced a reduction raised in her name. And so, Panmuir being reponed, he alleged, The assignation to Phineven was but of the nature of a substitution, failing heirs of her own body; and she was still fiar; and he had, after that right, counted to her as factor, and so passed from it; and she had power to alter; and it was on the matter but donatio mortis causa; and was granted by her in her minority; and her curators consenting to it were Phineven's father and brother. But he was ordained to be farther heard against these grounds. It was queried, Whether or not Mrs Mary's creditors could not have affected this sum, or if she might have called for a part of it, in case of necessity, by sickness or the like, it not being for onerous causes.
