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Scottish Court of Session Decisions >>
Robert Sanders of Auldhouse v Bessie Corbet. [1696] 4 Brn 340 (15 December 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040340-0726.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Sanders of Auldhouse v. Bessie Corbet
Date: 15 December 1696
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Rankeilor reported Robert Sanders of Auldhouse against Bessie Corbet, his father's relict, for refunding the price of sundry unbound books and others, disponed to him and intromitted with by her.
Alleged,—The disposition only gave him right to all the unbound books of his own printing that should be lying beside him at the time of his decease; ita est, most of them were either bound or sold before his decease: And, as to printing paper, that cannot fall under the disposition, which only mentions the materials for printing, such as presses, &c.
Answered,—She must be still liable, because of her fraudulent precipitation in causing sell off the greatest part of the unbound books per aversionem, and binding the rest, of purpose to frustrate and evacuate the design of his father's disposition; et dolus nemini debet prodesse: And the Lords, in like cases, have often repudiated it; as, where molosses were disponed, that should be in such a sugar-manufactory at the time of one's decease, he cannot, in lecto, reboil them to defraud the other's right: and, in the late Viscount of Oxford's case, who bought lands on his death-bed with a sum of money, then lying beside him, to prevent his Lady's having a third of it, the Lords thought this was premeditated; and the tutors were forced to compone it. See January 1679, Grant against Grant, where such a disposition did not prejudge the relict's part of the moveables. And as to the printing paper, it is certainly a material, and falls under that general denomination.
The Lords found, Any selling or binding of books at and about the time of his sickness, more than what he was in use to do before, was nimious diligence, and could not be sustained against the pursuer's disposition; and allowed a trial to be taken de more solito patrisfamilias in his own time; and found, That charta bibula, which is fit for no other use but printing, falls under the appellation of materials, and so is contained in his disposition; and that the ballads likewise belonged to him, they being unbound books in suo genere, and which use not to be bound.
