Scottish Court of Session Decisions

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

Alexander Hay
v.
Katharine M'Michael

Date: 4 March 1631

Click here to view a pdf copy of this documet : PDF Copy

The deceased Thomas M'Quharg, having made a bond of 2000 merks, in favours of Alexander Hay, his sister's son, and, failing of him by decease before majority, to Katharine M'Michael, mother-sister to the said Thomas; which being deposited by the said Thomas, in the custody of the said Katharine, after the said Thomas's decease,—the said Alexander, and James Hay, his father, son to Mr John Hay of Kennet, as administrator to him, pursues the depositary for exhibition, and the heir of Thomas M'Quharg, granter, to hear the same registrat against him. After the production thereof by the depositary, the defender alleged, that the bond could not be delivered to the pursuer, nor registrat at his instance; because it never became the pursuer's evident at any time before the decease of the granter thereof. And the pursuer replying, that it was put in this depositary's hand, who was the person appointed to have right to the sum, in case of the pursuer's decease before majority, and to be delivered by her, after the granter's decease, to the pursuer,—this reply was found relevant to be proven by the oath of the depositary, whose oath was sustained to prove the same; and it was not found necessary to be proven by writ, or oath of the party, defender, as the excipient contended it ought to be. Which was repelled, especially in respect the party, maker of the bond, was dead, and that the depositary was the maker's mother's sister, and was the second person appointed to succeed to the sum by the bond; and that it was never alleged that the maker, before his decease, did any deed, or expressed any contrary act, to recal that bond, or to derogate thereto, or altered or changed his will thereanent.

Act. Stuart. Alt. ——. Gibson, Clerk.

Vid. 22d January 1624, Lermonth against Alexander; 25th November 1631, Lauder against Dowglas.

Page 576.