Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Patrick Ellies and James Rae
v.
Sir James Dalmahoy

Date: 21 March 1628

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Barbara Logan, relict and executrix nominated and confirmed to umquhile Bernard, her spouse, is pursued, before her husband's testament is confirmed, by Patrick Ellies and James Rae, two of her husband's creditors, as intromitter with her husband's goods and gear. After citation, she confirms her husband's testament; and being pursued by Sir James Dalmahoy, as assignee to other two of her husband's creditors, suffers him to obtain decreet against her, and makes him payment; and afterwards raises summons of double-poinding against the pursuers, and the said Sir James, and certain others, her husband's creditors, which of them should be found to have the best right to the defunct's gear? Sir James alleged he should be preferred, in respect of his sentence and payment obtained, conform thereto. James Rae and Patrick Ellies alleged, They ought to be preferred, in respect of the first citation, and her suffering Sir James to obtain decreet against her, for null defence and her making to him voluntary payment, should not prejudice them who had made more timeous diligence. The Lords preferred Sir James, who had received payment by the first decreet, in respect of his sentence standing.

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