George Masterton (1640-bef 1705)
Portioner of Bothkennar
George Masterton and his son, also George, portioners of Bothkennar, are referred to in court proceedings that reached the Court of Session in 1705, in connection with a debt that became due after George senior's widow remarried. George, the heir, lost his appeal that the arrestment was unlawful.
George Masterton was married to Margaret Dalrymple and OPR Records show that they had five children between 1678 and 1685, although there is no OPR record for the birth of George, the heir referred to in the proceedings who became the fiar of the lands. A fuller genealogy of the extended family of George Masterton can be found at this link.
Third Series, Vol VII. 1681-82
6 January 1681, Edinburgh
Follows the report of the committee anent severall other persones therein contained conveened for absence from the Kings host. ...
George Mastertoune of Bothkennar hath proven by a certificat from the Lord Elphingstone that he was present. It is therefor the committees opinion that he be assoilzied.
The Register of the Privy Council of Scotland
P Hume Brown(ed)
Third Series, Vol VII, 1681-82, p9
HM General Register House
Eodem die. [January 31. 1705.]
John Corse, writer, contra George Masterton, portioner of Bothkennar. The deceased George Masterton infefts Margaret Dalrymple, his spouse, in the liferent of some houses. After his death she marries one Muirhead; and he being debtor to Corse in a sum of money, Corse arrests the rents in the tenants hands, as falling under his debtor's jus mariti. George Masterton, the first debtor's heir, and the fiar of the lands, compears, and alledged, Corse's arrestment is null, because the subject arrested was no debt, and had no being at the date of the arrestment, because the existence of the debt depended on the two joint lives of the husband and the wife, and if any of the two had died before the term, there was nothing due, and so the arrestment fell to the ground; and what makes it due, is the liferentrix outliving the term, and till then no arrestment could affect it; for before that, it was a non ens, and the arrestment had no foundation till they had outlived the term.
This is a notion never before advanced; for though the arrestment would eventually be ineffectual if either the wife or husband had died before the term, yet being laid on currente termino, and they outliving it, it is certainly a valid diligence; and has been so decided in a competition betwixt an arrester and an assignee, 27th July 1673. creditors of Scott competing; and Stair, lib. 3. tst. I. 29. allows arrestments of debts before the term of payment; and arrestments on conditional debts are valid, as Dirleton abserves, voce Jus mariti, and cites l. 18. D. de reg. jur.. and the case is clear in ancuis legatis, 3. Institut. de verb. obligat. l. 16. 1. D. eod. tit..
There is a great difference betwixt this case and arrestments on debts whereof the term of payment is not come; for there dies cessit licet non venit; but here it cannot be so much as said that dies cessit; for non subest debitum omnino till the term come, and they might as well arrest for all subsequent terms that the liferentrix shall happen to live, as for that current one. The Lords thought the casting of such arrestments might lay a foundation to defraud the creditors of liferenters; for if their rents could not be arrested till the term were past, then by compounding and giving down a little they might uplift it summarily, and so prevent all diligence of creditors; and therefore the Lords sustained Corse's arrestment as valid to affect that current term, and repelled the alledgeance of nullity against it.
The Decisions of the Lords of Council and Session
from June 6th 1678 to July 30th 1712
Lord John Lauder Fountainhall
Printed for G. Hamilton and J. Balfour