Scottish Court of Session Decisions

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

Duff
v.
Kellie

Date: 23 March 1624

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In an action of double-poinding betwixt Duff and Kellie,—the Lords would not sustain a disposition made by a common debtor to sundry persons, done to one who was a conjunct person, viz. brother-in-law to the debtor, bearing to be done for onerous causes and for satisfying of a debt owing to the receiver,—except the said party, to whom the same was made, should qualify and produce and instruct the debts, for the satisfying whereof the said disposition was made, otherwise than by the confession contained in the narrative thereof. And the Lords repelled the allegeance, whereby the party alleged that he ought not to be compelled to produce, as said is: seeing he alleged that the party who was maker of the said disposition, and common debtor, as said is, was not a bankrupt the time of the acquiring of the disposition controverted, but was a free person, not being at the horn at that time, and who had goods and gear of his own answerable to have satisfied the other creditor contridictor, by and attour this land disponed; so that it was lawful to him to have taken that disposition, etiam ex causa donationis, albeit there had been no other cause of debt preceding. Which was repelled by the Lords. But the contrary hereof was decided, in the action betwixt Mark Ker and Hoppringle, by interlocutor, and thereafter was ordained to be further heard.

Act. Mowat. Alt. Davidson and Boyd. Gibson, Clerk.

Vid. 20th February 1622, Young against Denniston; 21st February 1623, Craw against Irvine; 6th March 1632, L. Garthland; 22d November 1630, Mark Ker; 28th January 1625, Livingstone.

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