Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

Agnes Crawfurd, and her Children,
v.
Alexander Kennoway

Date: 23 November 1677

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Alexander Kennoway had become cautioner in a contract of marriage, for the husband's obligements in favours of Agnes Crawfurd, the wife, and the heirs and bairns to be procreated of that marriage. There are children; and the father dying, Alexander is charged to fulfil. As to the wife's liferent, he cannot evite the securing her in that; and if the other part of the obligement had only mentioned bairns, without adjecting the word heirs, there would have been as little doubt but he would have been liable to the bairns likewise. But his defence against them was, Ye cannot have right to this provision till ye be served heirs; and, qua heirs to your father, you are obliged to relieve me, who was only cautioner for your father; and so confusione tollitur obligatio: et quern de evictione tenet actio eundem agentem repellit exceptio; et frustra petis quod mox es restituturus.

This allegeance the Lords sustained, that ere they could seek implement, they behoved to be served heirs, and then they would be obliged to relieve: and therefore assoilyied from the pursuit.

This evacuates all cautionaries for provisions to heirs in contracts matrimonial; but it is only done to discourage such inept conceptions of these clauses. The title Codice, Ne fidejussores dotium dentur, aims elsewhere. Mr David Dinmuire, advocate, was just engaged in the parallel case to this. Vide this case argued supra, No. 555, § 6, [February, 1677.]

Advocates' MS. No. 661, folio 308.