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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Grindlay v Moodie [1838] CS 16_437a (3 February 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS0437a.html Cite as: [1838] CS 16_437a |
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Page: 437↓
Subject_Cessio—Simony—Bastard.—
The defender in a process of cessio alleged that the pursuer, who was the father of her natural child, had received a considerable sum under a simoniacal paction for the sale of a presentation to a vacant church, for which sum he had not accounted to his creditors; the defender, being allowed a proof, made out a case of much suspicion against the pursuer, but falling short of proof:—Held that the pursuer was entitled to the benefit of the cessio, but that neither party was entitled to expenses.
James Grindlay, writer in Falkirk, pursued a cessio, under 5 and 6 Will. IV. c. 56, which was opposed by Margaret Moodie or Burt, widow of George Burt, smith in Camelon, the mother of a natural child by Grindlay. The defender chiefly objected that Grindlay had intromitted with large funds of his father, without accounting for them, and that he had obtained a considerable sum under a simoniacal paction for selling a presentation to a church, the patronage of which had been bought by him. A proof of her averments was allowed to the defender. She entirely failed to prove the alleged intromission by the pursuer with his father's funds. In regard to the sale of the presentation, she made out a case of much suspicion against the pursuer, but which fell decidedly short of proof. In these circumstances the Lord Ordinary found the pursuer entitled to the benefit of the cessio, and also allowed him expenses subject to modification.
The defender reclaimed.
The Court adhered on the merits, but found expenses due to neither party.
Solicitors: A. James.— W. Mackersy, W.S.—Agents.
