Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Margaret Fraser and Rory Mackenzie of Prestoniiall v. Lord Lovat
Date: 12 June 1696
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Whitelaw reported Mrs Margaret Fraser, relict of Major Munro, and Mr Rory Mackenzie of Prestonhall, her uncle, against the Lord Lovat, her brother, for payment of £8000, as her portion. Alleged,—That the bond of tailyie, wherein this provision is contained, bears no personal obligement on him to pay, but only in case he redeem the estate from his sister; but, ita est, he does not bruik by that title, nor has yet used any order of redemption; and, till he use it, he cannot be liable. Answered,—He must then condescend quo titulo he possesses. Replied,—As apparent heir to his grandfather. Duplied,—He cannot pass by his father, granter of the disposition of tailyie, because he stood expressly infeft.
The Lords found the duply relevant, and repelled the defence; and found him liable,—the pursuer proving that Hugh, Lord Lovat, the maker of the tailyie, was infeft.
