Scottish Court of Session Decisions

Subject_1 FIAR.

Scott of Harden
v.
Christian Riddell

1747, Feb. 6, Nov. 6.
Case No. No. 8.

Click here to view a pdf copy of this documet : PDF Copy

A bond of 1200 merks to a man and a wife and longest liver of them in conjunct-fee and liferent, and their heirs, executors, and assignees, proviso that notwithstanding the said fee it should be leisome to them to dispose thereof as follows, viz. the fee of 500 merks at the disposal of the said Mr John Nisbet, and the other 700 merks at the disposal of the said Agnes Riddell by their writ under their hand, but that it shall be noways lawful to the said Mr John Nisbet to assign, uplift, and discharge any part of the premises without the advice and consent of the said Agnes Riddell: The wife survived and afterwards died without uplifting or disposing of the money, and her executors sued for payment. Harden pleaded compensation on debts to the extent of 700 or 800 merks, and Drummore sustained the defence for 500 merks from Candlemas 1721 when the debts did coincide, but repelled it as to the rest. Harden reclaimed, and at advising bill and answers, compearance was made for the husband's heirs, who insisted that the husband was fiar and the wife only liferenter with a faculty to dispone, and not having used it, the word “heirs” meant the husband's heirs, propter dignitatem. We took under consideration who was fiar, but thought there was no occasion for an interlocutor on it. Arniston thought, that after the husband's death the wife was fiar, whether jure accrescendi or non decrescendi eodem redit. Tinwald and I thought as the bond bore receipt of the money from both husband and wife, that, without the other above clauses, was sufficient evidence that there was 700 merks the wife's money, for no man would take the bond so were the whole money his own, and therefore that she was fiar of 700 merks and the husband of 500 merks. I add that suppose the husband fiar of the whole, yet the wife was at least nominatim substitute, and her heirs in case of her survivance, agreebly to our judgement 22d June and 3d July 1739, Ferguson against Jean M'Geogre