Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Lady Susanna Lort v. Sir Hugh Campbell of Calder
Date: 24 February 1700
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By articles and indentures of marriage passed in England, after their form, in 1688, betwixt Alexander Campbell, younger of Calder, and Elizabeth Lort, daughter to the said Lady Susan, she is provided to £700 sterling effective, to be paid yearly in London, by way of jointure; and the children are provided, first in a £1000 sterling in fee, and then to £1500 sterling; and because, by the English law, a wife cannot have action against her husband, therefore a trustee is interposed by way of fidecommiss. to pursue for implement of her provisions; and it is further covenanted, for the tocher of £4000 sterling paid down, that the said Lady Susan shall have right to the £700 sterling for the use of her daughter; and that the lands shall be settled and assured for the heir of the marriage, as her learned counsel at law shall advise: upon which clauses the said Lady Susan pursued Sir Hugh, not only to secure her daughter, but also the heir; and, for that effect, to serve him heir to his father.
Alleged,—As to the relict's jointure, they acknowledge the Lady has a title and interest to pursue for implement; and they are willing to perform: but, quoad the fee to the heir of the marriage, there is no clause in the agreement stating the jus exigendi in her, whereby she is empowered to suit implement for the heir of the marriage.
Answered,—By the foresaid articles, she may claim the fee to be secured by advice of lawyers, in place of whom the Lords now succeed: and if these articles were to be extended conform to the Scots style, persons would be named at whose instance execution should pass for implement, not only of what is provided to the wife, but likewise of the obligements in favours of the heir of the marriage.
Some of the Lords doubted what the import of the articles was; yet the plurality found they gave her the jus exigendi for the son as well as the mother; but found he behoved to be served heir before any procedure in the cause: and if the child's uncle, who is his tutor-in-law, refuse or delay to serve him, he may be removed, as supect, by a process, but not summarily on a bill. Which was craved this very week by Hamilton of Reidhouse against his Curators, for not making inventories: but was refused by the Lords, and remitted ad actionem ordinariam de removendo tutore.
