Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

The Laird of Corsbie
v.
Home, Acheson, &c

Date: 6 July 1631

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The Laird of Corsbie having comprised the lands of Eccles from Sir James Home, and, being infeft therein, pursued a removing against sundry persons;—Alleged by Peter Home, That he was donator to Sir James's escheat and liferent, and had obtained declarator general thereupon: yet, in respect that he could not allege possession of the lands by virtue of his gift, and that he had no special declarator thereupon, his allegeance was repelled. Next alleged for Gilbert Acheson, That he, being a creditor to Sir James, had comprised his lands, and also had gotten assignation of his debtor's escheat from the donator, in so far as might concern the lands comprised by him, and by virtue thereof was in possession. Replied, First to his comprising: it was reduced by the pursuer ex capite inhibitionis; so that, although he was creditor to the rebel, yet he was not to be accounted so, in respect of the pursuer. As to his assignation, it ought to be repelled, in respect the donator had given a back-bond to the treasurer, that he should not make any assignation of his gift to any person but by the treasurer's advice; and so the assignation was null. As to his possession, it ought to be ascribed to his infeftment that was reduced, and not to his right of the escheat. Duplied, The treasurer had only interest to quarrel the assignation, and none else; and he offered to procure the treasurer's consent to his assignation; and it standing good with the possession alleged, should defend him. The Lords thought that the back-bond given to the treasurer should be a part of the gift: and that it was all one as if the gift had been granted with that condition, That it should not be lawful to make assignation thereof; otherwise it should be in the donator's hand to prefer any creditor at his option. And, in respect of this reply, repelled the exception.

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