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Robert Miln, Writer, v Mr Rory M'Kenzie of Dalvenan, Advocate, and Butlers, his Cedents. [1624] 4 Brn 179 (3 July 1624)
URL: http://www.bailii.org/scot/cases/ScotCS/1624/Brn040179-0406.html Cite as:
[1624] 4 Brn 179
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Miln, Writer, v. Mr Rory M'Kenzie of Dalvenan, Advocate, and Butlers, his Cedents
Date: 3 July 1624
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The Lords found, seeing the assignation which the Lady Kirkland gave to Mr William Clerk, in her contract of marriage with him, to her jointure, was with the express burden of the bond she had given to the said Butlers, her children of the first marriage, that this made it real; so as no creditor of Mr William Clerk's could affect it by arrestment, or otherwise, no more than he could have reached it himself, having, by that clause in his contract, preferred them: notwithstanding the bond made no specific application to her jointure, but was only a personal obligement upon her, and that it was alleged it might be paid, and the discharges abstracted. All which the Lords repelled, unless they would propone a positive defence of payment, or the like: but, if it had been inserted in the contract, only by way of reservation, the Lords would have found it only personal. But a clause, “with the burden,” is otherwise.
