Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Jane Burnet and Her Husband
v.
Alexander Arbuthnot, alias Maitland, of Pitrichie, and Young of Auldbar

Date: 1 February 1709

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Lord Forglen reported Jane Burnet and her Husband against Mr Alexander Arbuthnot, alias Maitland, of Pitrichie, one of the Barons of Exchequer, and Young of Auldbar, as representing Burnet of Craigmyle, her brother, on this ground,—That Craigmyle, her father, granted her a bond, in 1667, when she was an infant, for 3000 merks, and thereafter, in 1677, another for 4000 merks; and she craves payment of the sums in both bonds, the last being only an additional provision, (such as her other sisters got,) and does not bear to have been in satisfaction of the first, and therefore both must subsist.

Alleged,—Though they can instruct the last bond was granted in lecto, and so reducible, and the first was never a delivered evident, and so null; yet they are willing to acknowledge the last bond, although containing the greatest sum. But then the first must be reputed as included therein, seeing the second bears an express clause, that it is in satisfaction of all she could ask or crave; so the second is a clear innovation and change of the first, and an implicit implement and revocation thereof; and so can never subsist as distinct and separate debts, seeing debitor non prœsumitur donare; as was found, 29th June 1680, Young against Paip; and in 1688, the Lady Yester against the Earl of Lauderdale; and, November 1685, Robertsons; and, more lately, Earl of Northesk against Carnegie of Phinhaven. And, for confirming that the second bond absorbs the first, this very pursuer did raise an action on the last bond, without any mention of thè first, bearing, she had no other maintenance for her education but that sum; which shows they had not the confidence then to claim both debts; and, whatever might be pretended, if the sum in the first bond had been greater than the second, yet there can be no pretence where the second bond contains a larger provision than the first.

Answered,—That, in provisions by parents to children, as their estates grow, so they augment their portions; and they are all sustained as distinctœ liber alitates, as Justinian decides, /. 7, C. de Dot. Promiss, conform to which, Dury observes, the Lords frequently decided in his time. And the first bond bears to be given by him as tutor and administrator to his daughter, and to be justly resting owing; which imports a clear ground of debt: and the clause, in satisfaction, does not recai the first bond unless it had expressly mentioned it, or had bore to be in satisfaction of her portion natural, or bairn's part of gear: and it excepts what he, of his own good-will, shall farther give her; which may well enough be applied to the first bond. And the pursuing for the last bond allenarly was not a passing from the first, especially seeing it was not then in their hands.

Replied,—The clause bearing to be as administrator, and justly resting owing, are but words of style; for a father, both jure naturœ et ex lege, is bound to portion his daughter; and, unless they say she had a separatum peculium adventitium, coming to her ex bonis maternis, or otherwise than by her father, the first bond can never sustain; and that is the case of Justinian's law 7, above cited; and the exception of his goodwill must not, with Janus, look back to a bond ten years prior; but, in natural sense, imports what he may freely bestow on her further after that bond, but not what was given before.

The Lords, in this circumstantiate case, found the first bond included in the second; and decerned allenarly for it and its bygone annualrents; and that the first bond was annulled and revoked by the clause of satisfaction contained in the second, and the other grounds above-mentioned.

Vol. II. Page 494.