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Scottish Court of Session Decisions >>
The Earl of Northesk v Phineven. [1699] Mor 5196 (9 February 1699)
URL: http://www.bailii.org/scot/cases/ScotCS/1699/Mor1305196-030.html Cite as:
[1699] Mor 5196
Subject_1 GROUNDS and WARRANTS. Subject_2 SECT. V.
Grounds and Warrants of Decrees.
The Earl of Northesk v. Phineven
Date: 9 February 1699 Case No. No 30.
A bond, found null, was not allowed to be given up to the defender in the reduction of it, but ordained to remain in the clerk's hands as a warrant of the process.
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The Earl of Northesk pursues a reduction against Phineven, his uncle, of a bond of provision for L. 40,000 Scots given him when he was young, and in familia. The reason was, that his father, in Phineven's contract of marriage, had given him lands to a greater value, et debitor non præsumitur donare.—Answered, This holds not in provisions from parents, which are ever reputed distinctæ liberalitates. But the Lords found the contrary between the Earl of Lauderdale and Lady Yester, 2d Feb. 1688, voce Presumption; and 12th Nov. 1698, Sydserf of Ruchlaw, Ibidem, conform whereunto the Lords here reduced Phineven's bond, as implemented by the subsequent provision.
June 29.—The Earl of Northesk having obtained a decreet of reduction against his uncle Phineven, (9th February 1699,) of a bond of L. 40,000; he now gives in a bill to the Lords, craving the said bond may be given up to him to be cancelled.—Answered, Although a writ be declared null so as not to operate against the party, yet it may have other effects, as here it astructs the onerous cause of the disposition made by his father to him of his lands, and therefore cannot be given up.——The Lords considered, where a writ is declared false, there may be reason to order it to be torn and cancelled in their own presence, but where it is only found null, it is enough that it be in the clerk's hands among the warrants of the decreet; though the reducer lies under the hazard, that as long as it is extant, he may be quarrelled in a reduction within 40 years. However, the Lords refused the desire of the bill as extraordinary and unusual, and ordained the clerk to give it to neither, but to keep it among the records and warrants. See Presumption.
Fol. Dic. v. 1. p. 355. Fountainhall, v. 2. p. 42. & 55.
