Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

The Earl of Northesk
v.
John Carnecy of Kinfauns and Lady Kinfauns

1697. June 29and July 16.

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June 29.—The Lady Kinfauns and John Carnegy, her son, pursue for an aliment during the dependence of the process between the Earl of Northesk and them. The Lords considering her tocher was £20,000, and that her jointure is 2500 merks yearly, they modified 1400 merks to herself, and 600 merks to her son; which 600 merks they allocated upon Blair, alias Carnegy of Kinfauns, the son of the first marriage. He reclaims by bill, that he having no benefit by his father, (but succeeding to his mother, who was heiress of Kinfauns,) none of the funds could be laid on him.

Answered,—Their father brought in 40,000 merks of patrimony into the family of Kinfauns, with which he relieved that estate of so much debt, and had power by his contract to burden it with 20,000 merks; and which he has accordingly done, by leaving to his son of the second marriage £5000 sterling, and providing him to that portion.

Replied,—A faculty not specifically exerced expires and dies with the person; and this provision to the second son has no relation to that reserved power, nor is it in terminis applied, not being done by infeftment.

Duplied,—No law requires a precise application to the reserved power, but any contracting of debt is a sufficient exercise of the faculty; and, though it be personal, yet any creditor may legally affect it, and thereby transmit and perpetuate it.

The Lords were clear such faculties did not require a specific implement, but that contracting of debt exhausted the same: yet, that they might proceed on the distinctest grounds, they ordained both contracts to be produced, the first containing the faculty, and the second the alleged exercise of it.

Vol. I. Page 780.

July 16.—The Lords advised the debate between the Earl of Northesk and John Carnegy, son to Kinfauns, about the right to a blank translation of a bond of 9000 merks, found lying beside Kinfauns at the time of his decease. Northesk adduced many adminicles and presumptions to convince the Lords that it was his father's evident, and taken out of his charter-chest by his uncle Kinfauns; seeing it was notourly known what access he had to his father's writs during the time of his distemper; and that the like trick was done in a case of George Cheyne's bond; as was found by the Lords, July 17, 1679, marked by Stair, et semel malus semper prœsumitur talis in eodem genere; and that it was found in a bundle, wrapt up with other papers, uncontrovertedly belonging to Northesk; and that his father had given a receipt of it to Gosford.

Answered,—A blank writ in my hands is as much presumed mine as if my name were filled up in it; and, as to the particular condescendence, they denied the same.

The plurality of the Lords found the presumptions sufficient to convince that the said blank translation belonged to Northesk, and not to Kinfauns.

Against this interlocutor, the Lady Kinfauns, as executrix to her son, protested for remeid.

[See other Cases between the same Parties pointed out in the Index to the Decisions.]

Vol. I. Page 786.