Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Archibald Stuart
v.
- - Denham

Date: 15 January 1739

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[Elch., Tailyie, Nos. 9 and 13; Kilk., ibid. No. 1.]

This process was about incurring the irritancy of a tailyie. Denham had tailyied his estate with several irritant and resolutive clauses. Archibald Stuart, as next heir of tailyie, pursues his son, the defender, upon three different irritancies said to be incurred by him. The first was the omission of the irritant and resolutive clauses in the general retour. This point Mr Stuart gained before the Session, but lost in the House of Lords. The second was the simple contraction of debts, which was said to be doing a deed by which the estates may be evicted. This he lost before the Session. The third and last irritancy, upon which this present process was brought, was an adjudication led against the estate for the bygone annuities of the tailyier's widow. It was pled, for the pursuer, that this fell under the clause by which it was made a forfeiture of the estate to do any deed of commission or omission by which the estate might be adjudged;—that the not paying the Lady her annuities was a deed of omission, upon which the estate was actually adjudged.

It was answered, for the defender,—That the suffering an adjudication to be led for the lady's jointure did not fall under that clause, but under another, by which it was made an irritancy not to purge an adjudication led for the tailyier's debts within a certain time; that these bygone annuities were the tailyier's debt, not the heir's; and, by consequence, the mere suffering an adjudication to be led for them was no irritancy, providing it was redeemed within the time allowed by the tailyie, which yet was not expired.

By this means the whole question was brought to this single point, Whether these bygone annuities were the debt of the heir or of the tailyier?

The Lords found, first, That these annuities were the debt of the heir, and that the irritancy was incurred; but, upon a reclaiming petition, they altered their former interlocutor, and found the irritancy not incurred; and, upon advising the cause a third time, they adhered to their last interlocutor.

The decision, as I thought, proceeded chiefly upon this ground,—That the widow, doing diligence within three years of the defunct's death, would be preferred by the Act of Parliament to the creditors of the heir;—that, as in that case the annuities would be reckoned the debt of the tailyier, it would be extremely hard, if, in so favourable a case as this, they should not be reckoned so too.