Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Blair
v.
Henderson

Date: 16 June 1757

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The Pursuer, being creditor to the father of the defender, raised an action after the death of his debtor against the defender, his eldest son, as representing him ; and the defender having renounced the succession, the pursuer obtained decree cognitionis causa. On this decree, the pursuer adjudged a small subject in Cupar as in hereditate jacente of his debtor. In this process the defender appeared and pleaded that the subject sought to be adjudged was not in hereditate jacente of his father, but belonged to himself as heir of his mother, to whom his mother's father had disponed the same in the following terms:—“For the love, favour, and affection he had and bore to Anna Young, his eldest lawful daughter, and to George Henderson, merchant in Cupar, her husband, and for certain other onerous causes and considerations giving, granting, and disponing to and in favour of the said Anna Young and Geo. Henderson, and longest liver of them two, and the heirs to be procreated betwixt them and their assignees whatsoever, all and hail, &c.” The defender therefore maintained that this subject could not be attached for his father's debts.

It appeared that George Henderson had survived his wife.

March 5, 1757.—The Lord Ordinary found “That the subjects disponed being from the wife's father, and his name mentioned first, and being for love and favour, and not for tocher with the wife, which is previously secured by the contract of marriage, the wife was fiar, and that therefore the subject cannot be adjudged by the pursuer, a creditor of the husband, on the decree of cognition against the defender, the heir of the marriage.”

In a petition against this interlocutor the pursuer referred to the following decisions in support of his argument, that the husband must be held to have been fiar :—Bartilmo against Hasinting, 2d Feb. 1632; Graham against Park, 29th Jan. 1739 ; Garden against Sandilands, 12th July, 1671; Edgar against Sinclair, 23d July, 1713. The Court, however, adhered. Lord Kilkerran has the following note of the grounds of the judgment:—

“June 16, 1757.—The President, Kilkerran, &c. declared for the interlocutor, only Kaimes stated a doubt upon this clause ‘and the longest liver of them,’ to which the answer made was, that the fee was originally settled in some body, and in respect of the circumstances in the interlocutor mentioned, particularly that it was a mere gratuity, not a contract of marriage, that could be no other than the wife. And on the question stated, see or refuse, the Lords refused the petition.”