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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Aytoun v. -
1669.
January
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A sum of money being due to one Aytoun by an heritable security, and failyieing of heirs of her body it was provided to her sister; and in the contract of marriage betwixt this Aytoun and her husband, the said parties espoused jointly grant a discharge to the debtor, of the heritable sum; and in that same contract, the debtor grants a new security, also heritable as the former, to the man, and relative to the former security. It falls out, the woman dies within year and day, without children, and leaves her husband her executor and universal legatar; and the heir of the wife craving repetition of the sum given nomine dotis, the question was, If the discharge given to the debtor of the security when it stood in the terms foresaid, was an innovation thereof, so that it remained no more heritable, nor could be claimed as belonging to the wife's heirs: the man in effect having received it in his own name, he was only liable in repetition condictione indebiti; for if the man had died within year and day, the wife had nothing competent to her but this action of repetition, and which action must fall under her testament and executry; item, she might have disposed thereupon; like as de facto she has done, by the testament above written, in favours of her husband.
The Lords found the discharge an innovation, and that there was nothing competent to the wife but the said action of repetition, which was moveable, and fell under testament.
