Scottish Court of Session Decisions

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

The Children of William Robertson
v.
Home of Kymergham

Date: 25 January 1694

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Rankeiller reported the Children of William Robertson, merchant in Eyemouth, and their Tutors, against Home of Kymergham, for the price of some timber their father furnished to him when he was married to the heiress of Ayton. Alleged,—It was not delivered to his factor, but his Lady's, and was applied for the girnels at. Ayton; and his interest jure mariti having quickly ceased by the dissolution of the marriage, the heir-male who succeeded to the lands, and got the benefit of these reparations, ought to be liable for the same, and not he,—the debt not being constituted against him during the marriage. The Lords considering he had an annuity out of the estate, and so was lucratus, they found him primo loco liable; reserving his recourse against the Earl of Home, now the heir-male, to whom it eventually proved to be in rem versum; for they thought the merchant not obliged to consider his separate distinct interest from the Lady, and to what use the timber was applied; which could not be instructed, he being now dead, whose oath could have cleared whose faith he had followed, if it had been sought in his lifetime.

Vol. I. Page 598.