Whether litigiosity bars payment, and other acts of ordinary management.
Shaw v. The Duke of Lennox
Date: 10 July 1630 Case No. No 50.
A creditor after citation against him in a process of adultery, which carries escheat of moveables, accounted and cleared with his debtor and gave him a discharge. The discharge found good against the donatar of escheat, the creditor deponing that the account was fair.
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The deceased Sir James Stuart having sold the wood of Methven to one Younger for 12,000 merks, to be paid at three several terms; to the price whereof, John Shaw being made assignee for payment of furnishing made by him to the said Sir James, and then the said John Shaw giving a back-bond to Sir James that he should refund the said sum to him, he being satisfied for his own furnishing in the first end thereof; and thereafter, the said Sir James being convicted of adultery, and his escheat disponed to the Duke of Lennox, who disputing with the said John Shaw, which of them had best right to the said price, which the Duke claimed by virtue of the escheat and the foresaid back-bond, and the said John Shaw claimed by virtue of the assignation foresaid, and that his back-bond derogated not to his right thereof, seeing the said Sir James had granted to him a discharge thereof, confessing that the furnishing made to him by the said John Shaw exceeded that sum;—to the which it was answered by the Duke, That that discharge could not prejudge him as donatar, seeing it was granted after that the said Sir James was cited for a capital crime, wherefore he thereafter came in will, and whereby his escheat fell; after which citation he could do nothing to prejudge the King; and the other alleging, That he might then take a discharge for furnishing made before, the particulars whereof he could not now instruct, being all given back at the time of the discharge;—the Lords preferred John Shaw to the Duke, albeit the discharge was after citation, but ordained to take Shaw's oath, if that furnishing was all truly made before the citation; which being sworn to be so, the Lords found, that the discharge ought to be sustained, albeit dated after the citation, and found it not necessary to prove the preceding furnishing otherwise than by his oath, in respect of the discharge.
Act. Mowat.Alt. Burnet.Clerk, Gibson.
Fol. Dic. v. 1. p. 556. Durie, p. 530.
