Scottish Court of Session Decisions

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

Horn
v.
Pow

Date: 1 February 1634

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John Horn, notary, in his testament leaves his writs and registers to one Pow, and ordains the said Pow to pay to his son, George Horn, therefore, 100 merks; which Pow promised to do: in this testament umquhile John Horn gives up a debt of ——, owing by him to George Grieve, which George had paid as cautioner for the said John; and, after the said John Horn's decease, George Grieve arrests this 100 merks in Pow's hands for satisfying of that debt, and obtains decreet against him therefore; and by virtue thereof recovers payment. Thereafter John Horn's son convenes Pow for payment of the said sum; who, excepting, upon the said decreet and payment, the Lords repelled the exception, and found that the said sum was not arrestable for the debt owing by umquhile John Horn to his creditors, being promised to be paid to the son, and never being in bonis defuncti, whereby it could be subject to his debt; and it was not respected that the party alleged that the money was promised to be paid for a legacy of writs left by the defunct, who could never leave any legacy effectually, which could not be subject to his debts; specially seeing, in this same testament, which bore the writs to be left for this sum, the defunct acknowledged this debt, and so he could leave no legacy in prejudice thereof. Which was repelled, and the sum found due to the son, according to the promise made by the defender, and not to the creditor, who, as he could not arrest the writs left to Pow, no more could he arrest the money promised therefore.

Act. ——. Alt. Craig.

Page 699.