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SCOTTISH_HoL_JURY_COURT

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(1716) Robertson 178

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 41.

David Gregory of Kinnairdy, Appellant

v.

James Anderson Grazier in Aberdeen, Respondent

24th May 1716.

Subject_Donatio inter virumet Uxorem. —

During the subsistence of a marriage a wife and her sister, who have an equal right to a bond, convey the same to the husband. He afterwards makes his will, appointing his wife executrix and universal legatee, for behoof of the grandchildren. After the death of the husband, the grant formerly made by her to him was not revocable as a donatio inter virum et uxorem.

Subject_Prescription —

The prescription of 40 years not to be counted, from the date of an assignment of a bond, but from the time of receiving the money thereon.

Subject_Onerous cause. —

An assignment of a bond, bearing to be for onerous cause, from the circumstances of parties as executrix and trustee, found not to prove the onerous cause of the assignment in a question near 50 years from the date thereof.

Subject_Trust. —

A discharge granted by an executrix to a manager for her under a will, who had a salary, or all his receipts and intromissions, in general terms, was not sufficient to discharge him from the intromission with a bond, which the deceased disponed to the widow, his executrix, for the good of his grand-children.

Subject_Costs. —

30 l. given against the appellant.

Hugh Fraser of Eastertyre, and Thomas Fraser of Strichen, as his cautioner, being indebted by bond in the Sum of 1000 l. Scots to Patrick Dyvie; the same was afterwards assigned to Dr. William Guild, Principal of the college of Aberdeen. Dr. Guild dying intestate, and without children, his sister Christian was confirmed his executrix, who with her sister Margaret, in August 1661, assigned that bond to Thomas Cushney, the said Christian's husband.

Thomas Cushney by his will and testament, in 1664, appointed his wife Christian his executrix and universal legatrix of all his

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estate real and personal, in trust for the respondent, and Thomas his brother, the testator's grandchildren by Jean Cushney his only child; ordaining his said wife to give up an inventory of his estate, and to employ the same for the payment of his debts, and the good and welfare of his grandchildren; giving his wife only a life-rent out of his said estate; and he appointed the appellant and two other persons overseers, and ordered his wife and grandchildren to pay 50 merks Scots to each of them yearly for their pains and trouble. This will and testament was also subscribed by Christian the wife of Thomas Cushney and Jean the daughter, in token of their assent thereto. After Cushney's death, the appellant pursuant to the trust and during the widow's lifetime, received the produce and profits of the estate of the deceased, and accounted to her for the same.

In 1666, Christian the widow executed an assignation of the said bond for 1000 l. Scots due by Fraser of Eastertyre and Fraser of Strichen, the nature and object of which are differently stated by the parties. The appellant mentions, that he being creditor to the said Thomas Cushney, and also to his said executrix, she for payment of what was so due to the appellant assigned the said bond to him, reciting the same to be for an onerous cause. The respondent, on the other hand, states, that Christian the widow was then very old and infirm, and that she executed the said assignation (ignorantly thinking she had a title to do so) and left in it a blank, with intention to fill it up with the name of the respondent (who was then under age,) or with the name of some other person in trust for him, in order, as she thought, to save him expences afterwards: and that after the death of Christian, the appellant continuing to direct the respondent in his affairs, took all the respondent's papers into his custody, and put his own name in the blank of the aforesaid assignation.

An apprising was after the date of the assignation obtained against the debtor's estate, in name of Christian the widow: in 1667, the appellant gave him a charge of payment on the bond, but it was not till 1682, that the appellant received payment of it.

The respondent having confirmed himself executor to Thomas Cushney his grandfather, in 1711 brought an action before the Court of Session, of count and reckoning against the appellant as overseer under Cushney's will, in which he charged the appellant with sundry articles as received by him, and among others, with the contents of the said bond for 1000 l. Scots with interest received by the appellant.

After sundry proceedings in this action, the Court, on the 10th of June 1715, “Found it proved that the appellant had received the sum in the said bond, and was accountable for the fame; but not for the other articles claimed.” And to this interlocutor the Court adhered on the 24th of the said month of June.

The appellant then contended that no trust appeared in the sand assignation; on the contrary, it was mentioned to be for an onerous cause: but, though there had been a trust, it did not appear

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that the respondent had right to the whole, since he had a brother, Thomas Anderson, who was entitled to a moiety: and, though there could have been any claim or demand by the respondent, yet the same was prescribed, the assignation being dated in 1666, and no action commenced till 40 years after. The Court, on the 8th of July 1715, “found that Thomas Cushney had right and title to the whole debt in controversy, and that the respondent and his brother Thomas had right and title thereto from Cushney; and therefore the respondent had good title to the half thereof, and remitted to the Lord Ordinary to hear parties' procurators on the respondent's title to the other half thereof, which belonged to Thomas Anderson; and also to hear parties on the onerous cause of the disposition in favour of the appellant; but repelled the objection and allegeance of prescription.”

The appellant then stated that he had paid several debts upon the respondent's account, which would more than compensate any demands against him; and the cause being pleaded before the Lord Ordinary, his lordship, on the 26th of July 1715, “found that Thomas Cushney had right to the haill sums in Strichen's bond, and repelled the objection against the libel, and sustained the defence, that the appellant had paid a debt for the respondent or his grandfather to Forbes of New relevant to compense pro tanto and to be proved scripto, and granted diligence for proving the same.” And upon a reclaiming petition against the first part of this interlocutor, the Court, on the 30th of the said month of July “decerned against the appellant for the surplus of Strichen's money over and above what was alleged to have been paid to New, and ordained the surplus to be liquidated.”

The appellant afterwards contended that the said trust, if any was, had been discharged; and he founded upon a discharge, dated the 4th of August 1670, executed in his favour by Christian as executrix to Thomas Cushney, reciting the appellant's faithful services to her in her affairs, and that he had made a just account with her; and therefore she discharged the appellant of all his receipts and intromissions and of all others entrusted to him preceding the date thereof, dispensing with the generality thereof as if every particular were therein inserted: and he likewise contended that the assignation by Christian to her husband during the marriage was void and revoked by the posterior assignation to the appellant. The Court, on the 21st of December 1715, “Found that Christian Guild having ratified her husband's testament after dissolution of the marriage could not revoke the disposition made by her to her husband in so far as concerns her interest in the sum due by Tyre and Strichen, and that the appellant being by Thomas Cushney's testament overseer both to his relict and also to the respondent, that the narrative of the relict's assignation to the appellant could not prove the same to have been granted for an onerous cause in prejudice of the respondent: and that the general clause in the discharge

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by the relict to the appellant does not extend to this subject.”

The appellant having brought no proof of the payment to Forbes of New, conform to the interlocutor 26th July 1715, the Lord Ordinary, on the 10th of January 1715–16, circumduced the term against him, and decerned for principal, interest, and penalty, in terms of the libel. The appellant having reclaimed, the Court, on the 9th of February 1716, “Assoilzied the appellant from the penalty in Strichen's bond, and allowed the decreet pronounced by the Lord Ordinary the 10th of January to be extracted for the half of the other sums there decerned for, but as to the other half granted diligence till the day of June next to the appellant, for recovering instructions of his compensation by the payment to Forbes of New, and for recovering the grounds of compensation, whereby the half of the sums alleged to belong to the respondents' brother Thomas Anderson is pretended to be compensed, reserving contra producenda.” The appellant afterwards presented a representation to the Lord Ordinary, which was refused on the 28th of February, and a reclaiming petition to the Court, which was also refused on the 29th of the same month.

Entered 14 March 1715–16.

The appeal was brought from “an interlocutor of the Lords of Session of the 10th of June 1715, and the affirmance thereof the 24th of the same month, and also of an interlocutor of the said Lords the 8th of July following, and likewise from an interlocutor of the Lord Fountainhall Ordinary in the cause of the 26th of the said month, and of an interlocutor of the Lords of Session of the 30th of the same month, and of an interlocutor of the 21st December following, and of another interlocutor of the said Lord Ordinary the 10th of January 1716, and of an interlocutor of the Lords of Session the 9th of February 1716, and from an interlocutor of the said Lord Ordinary of the 28th of the same month, and also from an interlocutor of the Lords of Session of the 29th of the same month.”

Heads of the Appellant's Argument.

1469, c. 28.

The respondent has no title to the bond in question since he claims it by a deed from a wife to her husband during marriage, which by law is void.

Though the respondent had any title, yet that is prescribed by the act of parliament 1469. c. 28.; for the assignment of the bond to the appellant is in 1666, and no action was ever commenced against him for it till 1711, which is more than 40 years, in which time all actions by the law of Scotland are barred.

Though the action were not barred, yet the very deed of assignment of the bond to the appellant bears the same to be for an onerous cause, or valuable consideration, and therefore it is the greatest hardship in the world to oblige the appellant, now almost 50 years after the date of the assignment, to condescend upon

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and prove the particular onerous cause or valuable consideration for which the same was granted; for it ought to be presumed both from the deed itself, and from the length of time that there was a valuable consideration.

Though the said bond had been assigned only in trust, yet that trust is presumed to have been executed, and the same accounted for; since in August 1670, four years after the said assignment, the executrix of Cushney, under whom the respondent claims, granted a general discharge to the appellant of all his receipts and of all things entrusted to him, which certainly at such a length of time is to be presumed to include this assignment.

Heads of the Respondent's Argument.

With regard to the prescription, the respondent claims only such sums as the appellant, his trustee, has received within these 40 years; for he received payment of the foresaid bond in 1682, (as appears by the appellant's release to the debtors) which is not 40 years ago.

Cushney's widow could not convey the said bond to the appellant, she and her sister having conveyed it before to her husband in 1661, to which the appellant is a subscribing witness; and receipts and vouchers under the appellant's hand were produced in court, to prove that he acted as trustee for the widow and grand children according to the will.

By Cushney's will his widow is only to life-rent his estate; and though she be named executrix and universal legatrix, yet he expresses that his intention was to empower her to make an inventory of his personal estate, and to manage all for the good of his grand-children: That his will might not be altered, he added a clause to it, which his wife and daughter subscribed, whereby they consent to every article therein recited, and bind themselves never to do any thing prejudicial to the will, and to which the appellant is a subscribing witness. Nor does it appear, that the widow ever designed the contrary; for nine months after the date of the assignment there was an apprising on the said bond, at her instance, against the debtor's estate; and the aforesaid blank in the assignment, in which she intended to put her grandson's name, is filled up with the appellant's name, in a different hand and ink from the body of the writing. Nor is there a sum specified in the assignment as the valuable consideration, which is necessary and usual according to the forms practised in Scotland. The appellant contended, that he had paid two debts of Cushney's, one to Innes of Towybeg, and the other to Forbes of New, which were the onerous consideration thereof: But that these debts were not the onerous consideration appears by the appellant's giving the respondent a bond in 1688 (22 years after the assignment) to relieve him of Innes's debts, because the appellant had received 50 l. of the Master of Salton upon the respondent's account, which is acknowledged in the said bond of relief for paying that debt.

The respondent does not sue in right of his mother and grandmother, but as heir at law and executor of his grandfather Cushney,

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to whom the said bond was conveyed by his wife and her sister; and therefore her discharge to the appellant could not invalidate the respondent's right, nor could it comprehend or acquit the appellant of his future actings, he having received the said sum twelve years after the date of that discharge. And that bond being secured by a real right, no general words in a discharge can be an acquittance of it.

Judgment, 24 May, 1716.

After hearing counsel, It is ordered and adjudged that the petition and appeal be dismissed, and that the several interlocutors therein complained of be affirmed: And it is further ordered, that the said appellant do pay, or cause to be paid, to the said respondent, the sum of 30 l. for his costs in this House.

Counsel: For Appellant, Rob. Raymond. Will. Hamilton.
For Respondent, Nathan Lloyd. James Steuart.

1716