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Scottish Court of Session Decisions >>
John Middleton and Elisabeth Cunningham, Petitioners. [1711] 4 Brn 853 (17 November 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Brn040853-0357.html Cite as:
[1711] 4 Brn 853
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.
John Middleton and Elisabeth Cunningham, Petitioners
Date: 17 November 1711
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Elisabeth Cunningham, sister to Enterkin, being married to Captain John Middleton, and having 12,000 merks of tocher, it was judged convenient by friends to secure it for the behoof of his lady and bairns, by lending it to my Lord lloseberry, and taking the bond in thir terms,—To the said Elisabeth in liferent, and to the heirs of the marriage in fee; whilk failing, to John Cunningham of Enterkin, her brother; with this quality and provision, that it should not be in the power of the said Elisabeth or her husband to alter, innovate, or prejudge the foresaid destination in favours of his wife, children, and substitute foresaid; and how oft the same should happen to be uplifted by the husband, it should be reemployed by the advice, and at the sight of the Lords of Session, in session-time, and the three Lords on the bills in the time of vaeance, in the precise terms and for the uses foresaid. The husband having bought a post in the army, and needing money, he and his wife gave in a bill to the Lords, representing that he is fiar of the sum, and has the power of uplifting; and that he has bought an advantageous place, to enable him the better ad sustinenda onera matrimonii, and needs this money to pay his debts contracted; and that he has lodged a bond in the clerk's hands in terms of the former bond, in favours of the bairns and substitutes, his wife consenting to the uplifting; therefore craves the Lords may interpose their authority, and allow him to raise the money on the security he has consigned.
The Lords found they were made overseers and administrators of this money by the conception of the bond, and so their trust obliged them to see it secured; and they thought his personal bond, who designed to live abroad, was too thin and slender a security for the bairns and substitutes to rely on; and that the least he could offer was to find caution for its reemployment, in the terms of the present bond. Which not being offered by him, the Lords thought they could not consent to his uplifting of the money; and therefore refused the bill, without so much as giving it to see and answer. But if to his simple bond he offer caution, then they would consider it, when it should be so made.
