Scottish Court of Session Decisions

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

The Viscount of Oxenfurd

Date: 23 February 1671

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The late Viscount of Oxenfurd grants a bond to Mrs. Mary Macgill his daughter, of 10,000 merks, which he obliges him, his heirs, and executors, to content and pay to her at her perfect age of fifteen years; the cause of it is love and favour, and for her maintenance. This bond she assigned, and dies before she attains to the age of fifteen. Her brother, now Viscount, being pursued to pay the sum, it is excepted that the bond pursued upon is null, in so far as the existency of the debt depended upon a condition which failyied, viz. her attaining the age of fifteen years, so that before that time nec cessit nec venit dies, and it being dies incertus it must be held for a condition. Answered,—That the adjecting the term of fifteen years is only causa differendæ solutionis, but noways to suspend her right to the sum till it should appear whether that condition existed, yea or no.

The Lords found the bond conditional and null, because it never existed. See something like this in the information, Sir William Stewart contra his brother Garntully, (see Nos. 9, 420, and 492,) about the bond given to their sister payable at her marriage, and who died unmarried. Vide l. 213. D. de V. significatione; item totum T. D. Q. dies ususfructus legati cedit.

Advocates' MS. No. 148, folio 92.

See 25th February, 1681, Gordonston.