BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
The Younger Children of Malcolm of Balbedie v Malcolms their Elder Brethren. [1692] 4 Brn 23 (13 December 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Brn040023-0047.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Younger Children of Malcolm of Balbedie v. Malcolms their Elder Brethren
Date: 13 December 1692
Click here to view a pdf copy of this documet : PDF Copy
The Lords advised the pursuit by the younger children of Malcolm of Balbedie against their two elder brethren; and decerned them to grant bonds of corroboration for their principal sums, contained in the provisions destinate to them by their father, and that conform to the articles of agreement made betwixt the whole bairns, in their father's lifetime; and this, notwithstanding a posterior agreement, made by the father with his two eldest sons thereafter; for the Lords found that transaction could not derogate from the prior jus quœsitum to the children, without their own consent; and found, this was not like a price of lands, to stand affected till all the incumbrances were purged, but like a bond given by a buyer, to one of the seller's creditors, and that they knew of this recognition before they entered into the articles; and as to the abatement each of them were to give, of their annual-rents, during the Lady Innerteil's life, found it was not twenty shillings Sterling of L.100 Sterling of annual-rents, (though so worded in the articles,) but e contra the sixth part of the annual-rent of L.100 Sterling, viz. a retention of one of six in the hundred; and first, they attempted to clear it by the former payments made of the annual-rents; but that not clearing it, some were for taking Balbedie's oath, on the meaning of this ambiguous clause. But the plurality carried it to the foresaid sense, without any farther expiscation.
