Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Gavin Hamilton
v.
the Heirs of Bonnar

Date: 6 December 1682

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Jean Lockhart having commenced a process for 4000 merks, as the half of the tocher provided to return to her, in case of no children, by her contract of marriage with John Bonnar;—it was alleged for the defender, That the tocher could not return, because it was never paid. Answered, The wife must have the benefit of the provision, unless it were alleged that the husband had done sufficient and timeous diligence for payment of the tocher, and could not recover the same. Which answer the Lords found relevant. But the defender condescending afterwards, upon diligence, viz. that he had pursued Captain Lockhart, the debtor, when insolvent, who was the pursuer's uncle, before the Chancery of England, where the process depended three years;—the Lords sustained the diligence, and assoilyied, although the process was never brought to any determination: And had it been sooner intented, might have proved more effectual; but Captain Lockhart's condition altering unexpectedly, by the eviction, from him, of a considerable land-estate, and the process having been intented, within two years after the term of payment of the last moiety, against so near a relation, the Lords sustained the diligence as competent.

Page 84, No. 347.