Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Ferne
v.
Captain Wishart's Heirs

Date: 25 Feb 1624

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In the cause of Captain Wishart's Heirs, whereof mention is made, 18th Feb. 1624,—the Lords found that an assignation made by umquhile Captain Wishart, to a debt owing to him, after the date of that bond mentioned and controverted in that cause, and made to the same person to whom that bond was given, and containing as great or greater sums than the sums in the bond, and payment made to the assignee thereof, conform to the assignation,—was not enough to take away the foresaid preceding obligation, or to liberate the heir therefrom; seeing the assignation was not made for that cause, but that the same bore to be made for sums paid to the cedent, and confessed by him in the assignation:—and found it not relevant, where it was referred to the assignee's oath, that no sums were paid therefor; for, albeit it were so, yet the cedent might confess the receipt of money which lie received not, and so the assignation ought not to take away the prior bond, by the alleged presumption of payment and satisfaction, by virtue of that posterior assignation, which had no mention or relation to the bond, or sums thereof. Partibus ut illic comparentibus.

Vid. 24th July 1623, Stuart; 4th February 1623, Guild 13th November, 1624, Wallace of Elderslie.

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