Dubious Clauses. - Revocation of a Tailzie. - Liberty to contract Debt. - Conjunctly and Severally. - Just and Lawful Debts. - Liferent and Fee. - Back-Bond. - Importing Property or only Servitude.
Stewart and Grant v. Barclay, alias Gordon
Date: 7 January 1703 Case No. No 39.
A disponer reserved power to contract debts, pro expediendo licitas suas res et necessaria negotia. A person who had lent him money, was not obliged, in a question with the disponee, to show that the money had been in rem versum of the disponer.
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Patrick Barclay, alias Gordon of Towie, is pursued by Stewart and Grant, for payment of a debt due by Rothemay, his father, to them; and for the medium probandi of the passive title against him, they produced his infeftment on a disposition from his father, burdened with all his debts contracted, or to be contracted.—Alleged, The clause allowed his father only to contract debts pro expediendo licitas suas res et necessaria negotia, and therefore it was not enough that they had lent him money, and got his bond for the same, unless they likewise prove that he borrowed and expended it on his necessary affairs; and the clause not only requires it to be a lawful debt, but likewise necessary, else these words superfluous, and signify nothing of necessaria negotia; and wherever a party is bound up from contracting debt, except on necessary occasions, the creditor must prove in rem versum, as in the case of minors, institors, interdicted persons, &c.—Answered, It is not so much as denied, but this is a just and true debt of Rothemay's, and that the money was actually downtold and delivered to him, and the creditor was not concerned to what use he applied the same; neither does the clause oblige the lender of the money to any such thing.–——The Lords repelled the defence, in respect of the answer.
Fol. Dic. v. 1. p. 147. Fountainhall, v. 2. p. 173.
