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.
Thomas Barclay of Hilton v. Agnes Bervy and Doctor Hamilton
Date: 6 July 1700
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Arniston reported Thomas Barclay of Hilton against Agnes Bervy, relict of Provost Boswal in Kirkaldie, and Doctor Hamilton. Barclay charges her on a bond for 1000 merks. She suspends on this reason, That it was the result of a transaction; for he having married her eldest daughter, and portions being settled on the younger by their father when on death-bed, this bond was given for a ratification, by the said Barclay and his wife, of these provisions; but Barclay having got a sight of the ratification, he lacerated and tore the same; and there was a decreet of Privy-Council against him, decerning him to renew it.
Answered, 1mo. It is denied it was for the ratification; 2do. Esto it were, this is not a clear compensation, seeing the bond is for a liquid sum, and the fact decerned for is illiquid; 3tio. The decreet of Privy-Council stands suspended.
The Lords found, by a discharge produced, That the bond and ratification Were the mutual causes one of the other; but Barclay's wife being now dead, it was factum imprœstabile to renew the ratification, and therefore loco rei succedit damnum et interesse. And that not being presently liquidated, seeing Barclay's son was yet minor, and could not ratify in his mother's stead, and the provisions were not quarrelled ex capite lecti; therefore they allowed Barclay to uplift the principal; for the reason did not stop the payment of the annualrents; he finding sufficient caution to refund, if his son did not ratify, or quarrelled these bonds of provision, at his majority.
2do. Compensation was craved on a decreet they had against Barclay, for £300, as some years' aliment of his children, and £30 for burying one of them.
Answered,—The bairns were her own grand-children, and so must be ex pietate avita; and as to the funeral, no particular account of articles given in.
The Lords would not sustain that ground of the pietas materna; but found, —seeing their father was in life, and no paction or agreement was pretended to be made with him,—that no aliment could be acclaimed: But all were clear, that, from the date of the instrument by which he required them back, he was tree; and the plurality assoilyied him from the aliment on the ground aforesaid. Vid. Stair, 21st July 1695, Ludquharne against Geicht; and supra, 18th June 1700, M'Lean against Ogilvie: And found not the grand-mother obliged to funerate the child that died with her, and that the article was moderate; and therefore sustained the compensation quoad the £30.
