D. 80. Forbes contra Blair. Eod. die.
DOctor Forbes and his Spouse, having recovered a Decreet against David Edgar; The said David did grant a Disposition in favours of his Mother; whereof the Doctor and his Spouse did intent Improbation and Reduction; and after long dependence, Certification was granted and Extracted; But the Defender having given in a Bill, craved to be Re∣poned, pretending that the Certification was granted in Winter, when the Defender being an Aged Woman, and attending one of her Children being Distracted, could not come in the time of a Storm; and within five or six dayes after the Certification was granted, she came and produced the Disposition;
The Lords before Answer, whether they would repone against the Cer∣tification, Ordained them to dispute upon the Reasons of Reduction. viz. That the Disposition was inter conjunctas personas, without an Onerous Cause; and that the Condescendence was not relevant, viz. That the Disponer had granted Bond for Aliment and Entertainment of him and the other Children to his Mother, and for her Terce; In respect the said Pretences were only patched up to colour the said fraudulent Disposition: And that the said Disponer, pendente lite and after Sentence, could not in prejudice of the Pursuer give a Bond, to be the ground of the said Dispo∣sition; But if there were any ground of the said pretended Debts, the De∣fender should have recovered Decreet for the same: and though the Debt were without question, the common Debitor, contrare to the Act of Par∣liament, could not make a voluntar Disposition, in prejudice of the Pur∣suers Diligence; to gratify and prefer another Creditor. It was Answer∣ed, That by the Act of Parliament, the Reason, (viz. That the Right was granted without an Onerous Cause) is only probable Scripto vel Ju∣ramento: and that the Disponer not being inhibited, the Defender might lawfully sibi vigilare, and take a Right for a just Debt: And by the Act of Parliament, the Diligence, that disableth a Debitor to give, and a Cre∣ditor to take a voluntar Right, is not a Dependence or a Decreet, but In∣hibitions and Hornings, which are so publick, that the Leidges may and ought to take notice of them.
The Lords were tender to repone against the Certification: and yet they thought not good to take away the Disposition upon the Certification; seing the Write was produced, and not suspected nor questioned to be false; and the Defender did excuse and purge her negligence (as said is:) and the Disposition being in her favours, who was sub potestate Ma∣riti, and should be defended by him, having her self in Law neither velle nor nolle, his negligence should not undo her: And therefore the Lords having considered also the Difficulties in the Debate, upon the Rea∣son, they reduced the Disposition in manner aftermentioned, by reser∣ving