Scottish Court of Session Decisions

Subject_1 FIAR.
Subject_2 DIVISION II.

In questions between parents and children, who understood to be fiar.
Subject_3 SECT. II.

Both parent and children named fiars.

The Earl of Bute
v.
Maclea

Date: 24 February 1710
Case No. No 43.

A bride's father became bound to pay a certain sum in name of tocher, and the husband obliged himself to add as much to it, and to take the whole to himself and his wife in conjunct-fee and liferent, and to the children of the marriage in fee. The husband having assigned the tocher, the Lords found the father was fiar, and that the children could not challenge the assignation.

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By contract of marriage betwixt John Ochiltree, merchant in Rothsay, and Katharine Maclea, the bride's father obliges him to pay in 400 merks of tocher, and Ochiltree the husband is bound to lay as much against it, and to take the whole 800 merks to himself and his wife in liferent and conjunct-fee, and to the bairns of the marriage in fee. Ochiltree, as tenant to my Lord Bute, owing some rents, he assigns him to the 400 merks of tocher, and Maclea being pursued for it, his defence was, it is expressly provided to my daughter in liferent, and her bairns in fee, which destination the husband could not disappoint nor invert. Answered, The husband was fiar, and had the power and disposal; and if a creditor of his had arrested it, he would have got a decreet of furthcoming, notwithstanding this quality; and he, as being assignee for an onerous cause, may do the same. The Ordinary found the children could not quarrel the assignation, and that the father was full fiar quoad them; but, as to the wife's liferent, she had an interest, not indeed to retain the sum from the assignee, but, on his receiving it, that he should find caution to make the annualrent of the sums assigned furthcoming to her in the event of her out-living the husband. The Earl having reclaimed against this interlocutor by a bill, he urged, that it was a mere personal provision, noways affecting the money, and he was full proprietor; and it might exceedingly retard commerce if such an embargo were laid upon it, for, amongst the commons, their great design was to trade with the tocher, by which they may triple their annualrent, and not to lie as a dead stock.——The Lords considered the interlocutor did not stop uplifting, but only secured the liferent to the wife in case of the husband's predecease; and being in a contract of marriage, they refused the bill, and adhered.

Fol. Dic. v. 1. p. 301. Fountainhall, v. 2. p. 572.