Scottish Court of Session Decisions

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

The Laird of Touch
v.
The Laird of Carnock

Date: 29 June 1627

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Laird Touch having the escheat of L. Kippinross, pursues the L. Carnock, as heir to his father, which father was addebted to Kippinross in a sum of money, to make payment to him of the same, as donatar who had obtained general declarator, and thereupon had arrested the said sum in the defender's hands, which, by this pursuit, he was desired to make forthcoming; and being referred all to his oath, viz. both that his father was debtor, and that he is heir to his father: and the defender alleging that this pursuit could not be sustained against him as heir to his father, to make the debt alleged owing by his father, forthcoming, except sentence had first preceded, and had been recovered upon the debt, finding that his father was debtor in that sum, and that thereafter that sentence was transferred against him: And it was alleged that the pursuit was against form, so summarily, without preceding sentence, to pursue him to make an alleged debt owing by his father, as arrested in the defender's hands, to be made forthcoming. The Lords repelled the allegeance, and sustained the pursuit, which they found formally and orderly deduced; for the rebel's self might have convened the defender, as heir to his father, to pay a debt owing to himself by his father, and referred it to his oath, and therefore the donatar might do the same.

Act. Craig. Alt. Primrose and Chaip. Gibson, Clerk.

Vid. 23d February 1627, Nasmith; 9th December 1626, Lord Blantyre.

Page 302.