Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Isabel Brown, Lady Hartside, v. Borthwick of Hartside
Date: 12 July 1704
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The Lord Anstruther reported Isabel Brown against Borthwick of Hartside, her son. The Lady Hartside, being infeft in a liferent annuity of 500 merks, pursues a poinding of the ground. Alleged, 1mo, Her bond of provision was granted on deathbed, when he could not burthen his heir. 2do, He bruiked the lands by a strict tailyie, containing irritancies; and, consequently, he could give no liferent out of it, there being no clause empowering him to provide his wife.
Answered to the first,—Denying death-bed, the allegeance is not receivable by way of exception, but only by reduction; as was found, 12th January 1666, Seton of Touch against Dundas. 2do, As it is incompetent, so it is irrelevant; for a husband may provide his wife in lecto, if it be not exorbitant; 23d February 1665, Rutherford and Pollock against Jack; and 21st January 1668, Shaw against Calderwood. And my provision is very moderate and small; and, in remuneration of a greater, I renounced. To the second, No tailyie can be interpreted to bind up a man from giving a suitable provision to his wife, it being a natural duty, where marriage is not prohibited. 2do, This tailyie being posterior to the Act of Parliament, 1685, introducing them, and ordaining them to be registered in a particular register, and this not being so registrate, it could lay no impediment on her husband to give her this moderate jointure.
Replied,—That the tailyie was under the strictest and severest irritancies; and, though it was posterior to the Act of Parliament, yet it related to one before it; and tailyies were allowed by our law prior to that Act, as in the case of the Viscount of Stormont and Creditors of Annandale; and the not registration is not declared a nullity.
The Lords thought the whole weight of this debate lay on the tailyie; for, to loose them, may endanger the best estates in the kingdom; and if it had been a locality, and not an annuity, there would have been less debate; but found, The tailyie not being registrate, it did not hinder him to give her a moderate jointure. Others thought this a dangerous decision, and inclined to have it heard debated in presence. And, upon a bill given in by Hartside, offering to pay her the annuity medio tempore, the Lords stopped the extracting of the decreet till November, that it might be farther heard and considered, as being of moment and importance.
