Scottish Court of Session Decisions

Subject_1 FORFEITURE.

Oliphant's Claim on Gask

1754, Feb. 27.
Case No. No. 24.

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By contract of marriage of Laurence Oliphant the attainted person, he became bound failing heirs-male of the marriage to pay to the daughters, if one, 15,000 merks, if two or more, 25,000 merks at their marriage or age of 16, which should first happen, which they claimed. Answered by Lord Advocate: There is a son of the marriage, and therefore the condition has failed, and the estate being forfeited it can never go to heirs-male. Replied, If the son die before his father, then the provision will become due, and they claim only as conditional creditors in that event. Dismissed the claim. 2do, Laurence the father in 1731 granted a bond of 9000 merks to James Oliphant his father, which bond the father assigned to the claimant and his sister by assignation of the same date with the bond, but empowering the father to divide it as he pleased, or to give it to any one of his children, and the grandfather was said to have sent this to his daughter-in-law the claimants mother to keep for the children, and the bond and assignation with the subscriptions to both cancelled now produced with a letter by the grandfather to his daughter-in-law of the same date, that appeared never to have been sealed, recommending to her to preserve the inclosed, without saying what was inclosed: 3tio, They produced two bonds of provision by Laurence to his two daughters, one to the claimant of 10,000 merks, and the other to her sister of 9000 merks, with a substitution to the claimant of 5000 merks, both dated 17th April 1739, contained a power of revocation and dispensing with the not-delivery; and claimed the first 9000 merks, although the bond was cancelled by their father, which they said he could not lawfully do, and therefore he granted the new bonds, which though they contained a power or faculty to revoke, yet that faculty could not forfeit, and quoted sundry precedents both in England and Scotland,—but the Lords dismissed both claims. They thought no claim could be sustained upon a cancelled bond and assignation, which for any thing that appeared were cancelled the moment they were signed and never delivered, and whether the forfeiting person had a power to revoke or not, the last bonds of provision could not become debts while they remained in his custody, and even though they had been delivered, yet since they were revokable they were not debts on 24th June 1745 in terms of the vesting act.—(23d July 1752.)

Ebenezer Oliphant being creditor in relief to Gask in several debts, entered his claim on the estate which was sustained. Thereafter the Barons of Exchequer surveyed an heritable bond due to Gask on the estate of Nairn, and he entered a new claim of relief on that subject, which was also of consent sustained (so far as he shall not recover payment out of the other estate,)—but here he claimed other three articles, to which he said he was entitled as cautioner, first the expenses of his former claim, 2do, the expense of one of the creditors to whom he was bound of entering his own claim and recovering a decree, and which this claimant said he had paid him; 3tio, the dues paid by him in Exchequer in obtaining payment. But we unanimously rejected all the three and dismissed the claim as to them, because they were not debts due by the forfeiting person nor now by the Crown, nor deductions out of the debt, but the claimant's own money,—pretty similar to the question anent the common expenses of ranking and sales, decided in 1738 betwixt the Bank of Scotland and Creditors of Prestonhall, and in 1742 betwixt the said Bank and Fraserdale.