Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
William M'Aull v. Alexander Herriot
Date: 25 January 1698
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I reported William M'Aull, late Provost of Haddington, against Alexander Herriot, merchant in Edinburgh, for payment of 1000 merks, contained in the Provost's contract of marriage with Elizabeth Herriot, the defender's sister, wherein Helen Scot, their mother, became bound, and whom Alexander, the defender, represents as her executor. The defence was, Imo,—The obligement is to pay it to the said William M'Aull and the bairns of the marriage; ita est, she assigned his children to much more than this sum extends to; and, being debtor, non prœsumitur donasse, but rather, primo loco, debitum suum dissolvere; as was found between The Duke of Lauderdale and Lord Yester, about his Lady's tocher; and that the lex ult. C. de Dot. Promissione, where they are found compatible et distinctœ liberalitates, was where the father dotaverat filiam, non ex bonis propriis, sed ex maternis. 2do. The Provost borrowed, from the said Helen, his mother-in-law, 1000 merks by bond, and so he was paid in his own hand. Answered,—Whatever gratifications his children got, that can never be ascribed in payment of this obligement; because they were not the direct creditors, but only the father, as appeared by the conception of the clause in the contract of marriage. And, as to the second, If she had applied that 1000 merks to extinguish her obligement, then the compensation would have met; but she has as signed his bond to his bairns, her own grand-children; and so he is not discharged of the debt. Replied,—Though the debt be not paid in forma specifica, and directly, yet it is implemented per equipollens; and what his children have got is materially as if it had been given to him, and, fictione brevis manus, secured by him to his bairns.
The Lords thought the process invidious; yet, in law, they found him the only creditor in the obligement; and the performance to the bairns did not exoner the mother: and therefore repelled the defences, and decerned.
