Scottish Court of Session Decisions

Subject_1 FIAR.

Scott of Harden
v.
Christian Riddell

Date: 6 February 1747
Case No. No. 8.

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A bond of 1200 merks bearing receipt of the money from a man and his wife, and payable to them in conjunct fee and to the longest liver, and to their heirs, executors, and assignees, proviso, that notwithstanding the said fee, yet the fee of 500 merks should be at the disposal of the husband, and 700 at the wife's disposal by a writing under their hands, but that it should not be lawful to the husband to uplift, assign, and discharge any part without advice and consent of the wife;—the wife survived, and died without uplifting or disponing; and her executors suing for payment, the debtor pleaded compensation on a debt of the husband's for 700 or 800 merks. The husband's executors also claimed the whole, because they said he was fiar, and the wife had only a faculty to dispose. Some thought that the wife by her survivance was fiar jure accrescendi, or non decrescendi; others, that the presumption was, that 500 merks of the money was the husband's, and 700 the wife's, and therefore that they were fiars by that proportion; but at any rate, that the wife was at least nominatim substitute, and in case of her survivance, her heirs, and the husband was disabled to prejudge as to 700 merks. We thought it unnecessary to determine the abstract question in whom the fee was, but we preferred the wife's heirs, and sustained the compensation only to the extent of the 500 merks. (See Dict. No. 10. p. 4203.)