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 £5, 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 Earl of Aberdeen v Sir Robert Baird. [1694] 4 Brn 126 (19 January 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040126-0287.html Cite as:
[1694] 4 Brn 126
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Earl of Aberdeen v. Sir Robert Baird
Date: 19 January 1694
Click here to view a pdf copy of this documet : PDF Copy
Philiphaugh reported the Earl of Aberdeen against Sir Robert Baird; and the Lords adhered to their former interlocutor, finding that Sir Robert Baird's adjudication of Arthur Udney's jus mariti of these fishings was null; because Arthur had then no right thereto in his person;—Isobel Jack, the proprietor, having disponed these salmon-fishings to Isobel Douglas, her daughter, in liferent, and to —— Udney, her grand-child, in fee, with the express seclusion of Arthur and his creditors; and she might qualify her donation in what terms she thought fit. And whereas Sir Robert alleged that the right of Arthur, his debtor, reconvalesced; because the Earl of Aberdeen, for his security, and to take away the grand-child's right, raised a reduction of Jack's disposition to her grand-child ex capite lecti; and actually reduced it, whereby the fee came in Isobel Douglas the mother's person; and consequently the jus mariti recurred to Arthur Udney, her husband, his debtor: for they found there was no right of accrescing in legal diligences, but only in voluntary rights, and that it was actus merœ facultatis in Isobel Douglas to quarrel her mother's disposition, to which neither her husband nor his creditors could compel her; and that, having disponed to Aberdeen, she could not hinder him to secure himself as he pleased, and wherein she had not concurred; and that this was so decided, supra, betwixt them and George Lawson, merchant in Edinburgh.
Sir Robert insisted on a third reason of reduction, viz. That, before Udney's disposition to him, he was lying at the horn, at his instance; and so, by the Act of Parliament 1621, he could not dispone to Aberdeen in prejudice of his diligence. But the Lords repelled this, in regard the said Act of Parliament only relates to creditors where a bankrupt gratifies and prefers one to another; but noways concerns nor extends to lawful buyers, and a stranger purchasing for a full and adequate price, who was not a creditor before. But, in regard some of the Lords thought it hard to allow a bankrupt to sell his lands, they also added another reason to their decision, viz. that a horning is not equivalent to an inhibition, quoad the effect of the Act of Parliament 1621; and cannot be reputed such a diligence as will hinder him to sell to a third party at any reasonable and just price.
