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 >>
Durham v Durham. [1676] Mor 3001 (12 December 1676)
URL: http://www.bailii.org/scot/cases/ScotCS/1676/Mor0703001-049.html Cite as:
[1676] Mor 3001
Effect of a resolutive condition. - Conditional provisions to Daughters. - Condition in a contract for Mariners' wages.
Durham v. Durham
Date: 12 December 1676 Case No. No 49.
In a bond of ratification, a party became bound to pay a legacy, upon condition that the granter relieved an estate of all other inconveniences. Found, that this resolutive condition ought not to void the bond entirely, but only proportionally according to the distress.
Click here to view a pdf copy of this documet : PDF Copy
Sir Alexander Durham having, upon deathbed, given bond to the Lord Clermont for 20,000 merks, and, at the same time, having ordained his nephew Mr Francis Durham, his apparent heir, to pay to Adolphus, natural son to the said Sir Alexander, 6000 merks; the said Mr Francis did, after the defunct's decease, grant bond relative to the foresaid bond, and to the order for Adolphus his provision; whereby he ratified the foresaid bond, and was obliged to pay the said provision to Adolphus, upon this condition, that the Countess of Middleton should warrant and relieve the estate of Largo from all inconvenients, and in special, such as might arise from his uncle's intromission with public accounts; and if the estate should not be free, ia manner foresaid, that the said bond should be void.
The said Adolphus having pursued upon the foresaid bond, it was alleged, that it was conditional, as said is. And the defender did condescend that the estate was distressed for a debt of 20,000 merks, for which a decreet was recovered against his heir.
The Lords found, notwithstanding, that the said resolutive condition was to be understood so that the bond should not be void altogether, but only proportionally effeiring to the distress.
This decision, though it may appear equitable, appears to be hard in strictness of law, the precise terms of the condition being considered.
Reporter, Newton.Clerk, Hay.
Fol. Dic. v. 1. p. 192. Dirleton, No 397. p. 195.
