Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. X.
Import of the Obligation with regard to the Father's cautioners.
Fotheringham v. Fotheringham of Pourie
Date: 5 December 1734 Case No. No 76.
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In a contract of marriage the husband's cautioner being bound to employ a sum for the use of the wife in liferent, and the children of the marriage in fee; and the husband having died bankrupt without implementing, in a process at the instance of the children against the cautioner, the defence was, That the pursuers, as heirs of provision, are ultimately liable to relieve the cautioner, and frustra petit quod mox est restituturus. Answered, The pursuers have got nothing by their father, and so cannot be liable for any of his debts; nor will the sum they recover from the defender make them liable for their father's debts, because their claim is not qua heirs to their father, but as the defender's creditors. The Lords found the cautioner bound to implement, and that without relief. See Appendix.
Fol. Dic. v. 2. p. 283.
*** The same was found the day following, Ross of Markinch against M'Kenzie of Applecross. See Appendix.
*** Lord Kames, in his Dictionary, v. 2. p. 283. refers to a case, 6th January 1627, Stewart against Campbell, in which he mentions, that a decision similar to the above was pronounced. No such case has been found. Perhaps the date ought to have been 1727. See Appendix.
