An inhibition being served upon a general charge to enter heir, it was found, that the debt must be specially mentioned in the charge.
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Hary Davidson, taylor in the Canongate, in his second contract of marriage, provides 1000 merks to the children of that marriage; and Agnes being the only bairn procreated thereof, her father, by a separate bond of provision, gives her a thousand merks more; but it makes no mention of, nor has any relation to the contract of marriage. On these rights, she adjudges some lands from Robert Davidson, her brother of the first marriage, and that for both the sums in the contract, as well as the separate bond. Thomas Randel, and Margaret Robertson, as deriving right from the said Robert, compete with his sister Agnes, and repeat a reduction of her rights on these reasons; 1mo, That she cannot claim both the 1000 merks, but must content herself with one of them; for the father being debtor to his bairns of the second marriage in 1000 merks by the contract, the posterior bond being for that same individual sum, must be presumed to be in implement thereof, seeing debitor non præsumitur donare quamdiu debet; and so the first provision is satisfied and absorbed by the last, which comes in the place thereof, and both cannot subsist together; and the current of decisions has run this way lately. In the famous debate betwixt Yester and Lauderdale, 2d Feb. 1688, voce Presumption, the Lords found the Lady Yester could not both seek the provision in her mother's contract of marriage, and her bond of provision likewise; and that the second was no augmentation of the first, unless it had expressly borne, that it was over and above what was contained in the contract of marriage, but they behoved to coincide and compense one another as but one debt, especially where the sums exactly quadrate together, as they do here, and was so found, 29th June 1680, Young contra Paip, voce Presumption. Answered, The brocard cited does not answer between parents and children; for their bonds of provision are not to be interpreted in satisfaction of former provisions, but rather to be additions thereto; and Justinian calls these donations distinctæ liberalitates; and here there was good reason for it; supposing there might have been four or five children of that second marriage, Agnes would have taken only 200 merks of the 1000; and therefore her father gave this additional provision to herself nominatim, and does not say that it is in satisfaction of the contract. The Lords found the last bond to be in implement of the contract of marriage, and that they were not both due, and therefore restricted the adjudication to one of the 1000 merks, and its annualrent allenarly. The second reason of reduction was, that the inhibition served on the general charge to enter heir was null, because the charge did not specially mention the grounds of the debt now insisted on; and by the late decision betwixt the Lord Ballantyne and Arniston,* it was found such a charge must be special. Answered, The condescendence was sufficient, seeing it mentioned debts in the general. The Lords found this not to be enough, but it behoved to be special. The third reason was, that the decreet is null, because it does not bear, that avisandum was made with the production, and a warrant obtained to discuss the reasons summarily, as all well extracted decreets ought to do, this being an essential part, inter solennia. Answered, Few decreets bear that per expressum; and it is to be presumed the clerks would not omit it, if it were for no more but their own dues; and it could not be enrolled without a warrant. The Lords found this omission no nullity, but that it was to be presumed to have been really done. See Presumption.
Fol. Dic. v. 1. p. 472. Fountainhall, v. 2. p. 337.
