Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 CLAUSE - GENERAL ASSIGNATION.
Subject_3 A banker's promisory-note found not to fall under a general bequest of goods and gear.

Geokge Fraser
v.
Janet Smith and Robert Oliphant

Date: 9 July 1776

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[Fac. Col. VII. 244; Dict., App. 1, Clause, No. 2.]

Covington. The oath in the cessio bonorum bears heritages, sums of money, goods and gear. This shows that nomina are comprehended under goods; for they are not comprehended under heritages, and yet they are within the oath. The proper way of judging, in this case, is to consider, 1st, The legal import of the word; and, 2dly, Whether any thing in the deed varies that sense. It is plain, from statutes and styles, that goods and gear implies bonds and bills: besides, if the contrary were understood here, the party would die partly testate and partly intestate; for she revokes all former settlements of her moveable estate. The difficulty, from the enumeration of the household furniture, is removed; for the woman lived in another man's house, and found it necessary to inventory her own furniture, that it might be distinguished from his. She dispones without prejudice to generality, which implies that there was something still behind.

Gardenston. The words do not comprehend the bill of L.40. The decision, 19th February 1745, Ker against Young, seems in point: the decision in President Dalrymple was, according to the collector, on a quæstio voluntatis, not on the mere construction of the words.

Hailes. The decision in President Dalrymple is strong. That in 1745 seems to have proceeded on the circumstance, that the leading word was household furniture; and hence any mention afterwards made of moveables, might have been supposed to refer to things of the same nature with the leading word.

Monboddo. I have the same difficulties as Lord Gardenston. This is a quæstio voluntatis: goods and gear, with an enumeration of certain things, is not sufficient to carry a L.40 bill, of more value than every thing disponed. If the words were clear, I should decide according to them, without inquiring as to the intention, though not without difficulty; for Dirleton, the greatest of our lawyers, is of a different opinion, because of the two inventories in the Commissary Court. Moveables seems taxative, limiting the sense of goods.

Lord Covington's argument, from the improbability of one meaning to die partly testate partly intestate, would be strong, were there here a testament; but, as there is no testament, that is an additional reason for proving that the deed comprehended not every thing.

President. There may be body-clothes left to a person, and yet no intention of excluding the nearest in kin. The words, to take possession, seem to relate to things in the hands of the disponer.

On the 9th July 1776, “The Lords preferred the nearest in kin to the L.40 bill;” altering Lord Kennet's interlocutor.

Act. G. Buchan Hepburn. Alt. H. Erskine.

Diss. Kennet, Stonefield, Hailes, Covington.