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.
James Grierson of Capinoch v. Alexander Clark
Date: 9 February 1712
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Grierson against Clark. Carruthers of Warranby assigns a bond of 1000 merks, due to him by the Lord Stormont, in favours of James Murray, son to Hydewood, bearing love and favour; and, in respect he was a pupil, he appoints the said James's father and mother, and the longest liver of them two, to be his tutors in the management of the sum assigned. James Grierson of Capinoch being creditor to Murray the child's father, and he being deceased, Capinoch confirms himself executor-creditor to him in that sum, as being in ejus bonis, and presumed to be acquired by the father's means, the infant having no effects of his own to make any such purchase. Alexander Clark being likewise creditor to the father, he applies to the mother, as the longest liver, and gets an assignation from her, qua tutrix, to the sum. Whereupon a competition arises betwixt Capinoch the executor-creditor, and Clark the assignee; who contended that the sum was unquestionably the pupil's; and he having obtained a right thereto from the tutrix, he was clearly preferable to Capinoch, whose confirmation presupposed the sum to be the father's. But if that foundation were overthrown, then his right fell in consequence; for though lands taken in the name of a pupil presumed the acquisition to be by the father's means, yet it was not so in rights flowing from third parties, which may be pure donatives, without any respect to the parents. The peculium adventitium in the Roman law was the child's own property quoad the fee; and if it were otherwise, it might discourage friends and relations to settle gratuities on their blood-relations' posterity, who noways design to put it in the parents' power to dissipate or disappoint their gift, out design it wholly to go to the pupil's behoof,
The Lords found there was no evidence here of its being acquired by the father's means, and so Capinoch could not claim it as executor-creditor to him. It is true some have taken right to lands and sums in their children's names in familia, to cover them from being affected by their creditors; but that is not the case here.
