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Scottish Court of Session Decisions >>
Sir Alexander Forbes of Tolquhon v Dalgard, Relict of William Johnston. [1683] 3 Brn 448 (00 January 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1683/Brn030448-0666.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1681 and 1683.
Sir Alexander Forbes of Tolquhon v. Dalgard, Relict of William Johnston
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1681. July 14.—The Lords, on Pitmedden's report, found the new transaction, made by her husband, (wherein she was not a consenter,) could not take away her right by the first minute, which provided her to so much of the money in liferent.
In the same process, the Lords sustained the allegeance of competent and omitted as relevant against Tolquhon: though it was alleged, lmo, It was only omitted in a suspension. 2do, Tolquhon offered to depone it was noviter veniens ad memoriam, since the discussing of that first suspension; for, though he had the writ lying beside him, yet he had forgot it.
This the Lords also repelled: and made a distinction between noviter veniens ad notitiam, et ad memoriam; and found this last not enough, in facto proprio, to repone him; and that law only knew the first, but not the second.
Vol. I. Page 147.
1683. January 16.—The case between Sir Alexander Forbes of Tolquhon, Dalgard, and Johnston, (vide 14th July 1681,) being heard in presence; the Lords found the letters orderly proceeded against Tolquhon, in respect of the two decreets in foro, and his bond of corroboration following thereon; though he was in prison when he granted that bond, and though the charger's husband had not fulfilled his part of the minute of contract; but, in regard he found his own inability to do it, he had discharged it. But she was not a consenter, and it did not appear she had any other provision, otherwise it would have been donatio inter virum et uxorem, and tacite revoked by his discharge.
