Some doubts & questions, in the law, especially of Scotland as also, some decisions of the lords of Council and Sessions / collected & observed by Sir John Nisbet of Dirleton ... ; to which is added, an index, for finding the principal matters in the said decisions.

Fiars of Bonds

A Bond being in these terms, To a man and his Wife and the Heirs of the Marriage; which failʒieing to the longest Liver of them two and the Heirs of the surviver, Quaeritur, who is the Fiar?

A Bond being granted to a Husband and his Wife and the longest liver of them two in Conjunctfee; and to one of their Sones expresly named and the Heirs of his Body: whilks failʒieing to the Heirs to be procreat betwixt the Husband and the Wife; whilk failʒieing to the Wifes Heirs and Assigneys, Quaeritur, Whether the Fee of the said Sum pertaineth to the Husband, or to the foresaid Son, or to the Wife? Ratio Dubitandi, That the Right of

Succession terminates upon the Wife and her Heirs, which seems to import that she is Fiar. 2do. As to the Son the said Sum being provided to his Heirs in the first place It seemeth that the Fee should pertain to him: Seing the Heirs of his Body are to succeed in the first place, and the Fee of Money (as it is said of the Ʋsufructus of Money, That it is quasi Ʋsu∣fructus) is quasi feodum & Proprietas: and properly that is said to be Pro∣perty which belongeth to a person and descendeth to his Heirs: And yet it is thought that the Fee of the said Sum doth belong to the Husband, in respect the Money being his own was lent by him in behalf of himself and the foresaid persons: and albeit when a Bond is conceived simply to a Husband and his Wife in Conjunctfee and to her Heirs and assigneys, she is Fiar; for the reason foresaid, that it is to belong to her and her Heirs only. Nevertheless when there is diverse degrees of Substitution of Heirs of diverse persones and of a Wife in the last place, the person whose Heirs are provided for in the first place ought to be understood to be Fiar: and these in secundis tabulis and in a more remote degree, to be only Heirs of Provision Failʒieing the former: and if the Son had survived or his Heirs, It is absurd that they should be Heirs to their Mother and not to their Fa∣ther; And that the Mother being Fiar should have power to Dispone of the Sum in prejudice of her Husbands Children. And albeit the said Sons Heirs be first named yet it is thought that he is not Fiar, seing he is to be Heir of Provision to his Father: as if an Infeftment were granted to his Father and Wife in Conjunct-fee; and failʒieing of them be decease, to a certain person their Son and the Heirs of his Body: The Son in that case would be Heir of Provision.

A Bond being granted to a Man and his Wife and longest Liver of them Two and their Heirs: And the Wife having survived, Quaeritur. If she will be Fiar of the said Bond?

A Person having Infeft his Creditors for security of Debts, and while they be payed respectively. Quaeritur, Quatenus They are Fiars whe∣ther in solidum, or ex parte: And qua parte? Respondetur, They are Fiars proportionally, and ex parte effeiring to their Debt.