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Scottish Court of Session Decisions >>
Earl of Delorain v The Dutchess of Buccleugh. [1723] Mor 6396 (7 December 1723)
URL: http://www.bailii.org/scot/cases/ScotCS/1723/Mor1506396-047.html Cite as:
[1723] Mor 6396
Subject_1 IMPLIED CONDITION. Subject_2 SECT. VIII.
Obligations, or Renunciations, granted upon an expectancy disappointed, or upon the supposition of a fund of payment of which the party is afterwards deprived.
Earl of Delorain v. The Dutchess of Buccleugh
Date: 7 December 1723 Case No. No 47.
A forfeiture having been rescinded, a bond previously granted, was found to impute pro tanto, in satisfaction of the claims for which the obligant, in virtue of the act rescissory, might have been accountable.
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In the year 1688, the Dutchess of Buccleugh being at that time possessed, by a gift from the Crown, of the Duke of Monmouth's personal estate, in consideration of this, and that her son, the Earl of Delorain, was not otherwise provided, she granted him a bond of provision of L. 26,000 Sterling. The Duke's forfeiture, amongst others, being rescinded by the general act rescissory in the year 1690, the Earl of Delorain, upon that medium, insisted in a process against her Grace, to account to him for the Duke of Monmouth's personal estate, having right thereto as executor decerned to the Duke his father. The Dutchess did not oppose the action, only craved, that the bond for L. 20,000 Sterling, granted and paid by her to her son, the pursuer, might be imputed pro tanto in satisfaction of his claim; and it was pleaded for her, That it never was intended my Lord Delorain should have both the bond and his father's personal estate; the bond was granted when my Lady Dutchess had no fund to answer it, other than this personal estate, having no power to charge it upon the entailed estate; and therefore, as the bond was plainly given in contemplation of the Dutchess having this subject, it being taken from her, the bond must fall to the ground as sine causa. It was answered, There is a great difference betwixt the cause of granting a bond, expressed in it, to make it effectual, and those by-views or motives which possibly may influence the granter, and even determine him to make the provision greater or lesser.——The Lords found the bond of provision, by the Dutchess to the Earl of Delorain, must impute at least pro tanto, in satisfaction of the claims for which the Dutchess, in virtue of the act rescissory, might be accountable to the Earl as executor to his father.
