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Scottish Court of Session Decisions >>
Jean Dolby and Patrick Lauder v William Hog. [1677] 3 Brn 165 (12 July 1677)
URL: http://www.bailii.org/scot/cases/ScotCS/1677/Brn030165-0195.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Jean Dolby and Patrick Lauder v. William Hog
Date: 12 July 1677
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In the case of Patrick Lauder and Jean Doby, his spouse, and William Hog, her son, the Lords found, where a party had given a bond obliging himself to submit, it was equivalent to a submission; as an obligement to discharge, if it be simple, is a discharge upon the matter; only, in regard the year was expired, (and indefinite or blank submissions in construction of law stand only for a year,) after the date of the bond, and the woman submitter was now, medio tempore, clad with a husband, and one of the parties arbiters was dead, (in whom, eligitur industria per-sonce,) they found the bond to submit could not bind, because it could not now take effect.
The said Hog having also raised reductions of the said Jean her decreet of adjudication, proceeding on the provision and clause of conquest in her contract matrimonial; see seven or eight reasons of reduction in the information beside me, with answers thereto. I shall only mention one, viz. that the decreet was null andwith-out probation, because it did not prove the time of her husband's decease.
Replied.—Though [she] might be admitted hoc loco to prove it yet, to fortify her decreet, (see Stair's Decisions, November 29, 1662, Somervell and Newton:) yet she needed not, because having libelled a definite time, viz. the month and year when he died, and there being compearance, and that time not denied, [she] was not obliged to prove any more than what they put [her] to prove, and, consequently, was liberated from that. Which was found relevant.
Upon another reason in this reduction, viz. a woman being provided to the liferent of a sum for her jointure, and likewise to the liferent of the conquest, if the most of what her husband leaves was conquest, and she crave the liferent of that primo loco, and would cast over the other provision to be supplied by the heir out of the stock and fee: The Lords find this calculation ought not to be suffered; but, primo loco, the liferent of that sum must be made up to her, and then she may claim the liferent of the remanent as conquest; for conquest is only deducto ære alieno; now the former provision is a debt, and so to be defaulked.
See M'Keinzie's Observes on the Act of Parliament 1621, p. 74.
