Scottish Court of Session Decisions

Subject_1 GENERAL ASSIGNATION.
Subject_2 SECT. II.

Relative to Thirlage. - Legacies. - General Clauses in Assignations. - What a General Assignation will carry.

Morison
v.
Nisbet, and Harden

1697. February.
Case No. No 9.

A general disposition of moveables was found not to comprehend a bond granted to the disponer's wife, without his knowledge, to procure her assistance in influencing her husband to settle his estate on the granter of the bond.

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William Nisbet of Dirleton granted bond to Dame Jean Morison, his predecessor's Lady, for the sum of 40,000 merks; and after her decease, they entered into a new transaction, by which he gets up the former bond, and grants her a new one for 30,000 merks. She likewise deceasing, the right of this bond falls to William Morison of Prestongrange, her brother; and he craving payment, Dirleton suspends on double poinding, that he was not only distressed by him, but likewise by Dame Jean Nisbet, as nearest of kin to Sir John, and Sir William Scot of Harden, her husband. And they falling to debate their several interests in this bond, the Lady Harden claimed it, as executor to her father, in so far as this bond came in place of one granted to her father's Lady, in his lifetime, and so accresced to him, being not only presumed to be his, but likewise known to be given as a gratuity to influence the tailzie and succession of his estate from Nisbet of Dean to this William who now enjoys it. —Answered for Prestongrange, He opponed the bond in his sister's name; and esto it had been surrogatum, in place of one granted to her stante matrimonio, and before her husband's decease, yet he founded on two dispositions, granted by the said Sir John to this Dirleton, whereby he assigned him to all bonds, debts, and sums of money, any way belonging to him at the time of his decease; but ita est, on Harden's supposition, this bond fell to Sir John, and was his at the said time; ergo, I must have right to it, because my sister and I have all the right this Dirleton had, and being come in his place, may propone whatever he could say. —Replied, It cannot be carried by the first disposition, because that relates only to such bonds as he left contained in a list or inventory of his debts, whereof this was none; and it was as little comprehended in the second disposition, because, though that related to no inventory, yet it bore an obligement on Dirleton to tailzie all the sums disponed in the same way as the lands were tailzied, which restrained him from giving any such bond to the Lady; besides, nemo fertur ad incognita; he could never mean this bond which he knew nothing of, but was given as a secret gratification concealed from him. And yet the, law, l. 51. D. de donat. inter vir. et uxor. makes all such purchases of wives devolve to their husbands, ad evitandam turpis quæstus suspicionem.——The Lords found this bond comprehended under none of these dispositions, and therefore preferred the Lady Harden, as executor to her father, to the right of this sum. Prestongrange appealed to the Parliament,

Then alleged, That in so far as it was onerous, it ought to subsist; and they offered to prove it was not only granted on the account foresaid, but also for her entertainment of the family till the next term, and for the expense of her mournings, &c. of which the Lords were to consider after he had given in his condescendence on the particulars; but the interjecting the foresaid appeal put a stop; though in law such protestations are not to be admitted but against definitive sentences terminating the whole cause.

Fol. Dic. v. 1. p. 340. Fountainhall, v. 1. p. 771.