Scottish Court of Session Decisions

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

Mosman
v.
The Earl of Abercorn

Date: 22 July 1635

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One Mosman, donatrix to the escheat of one Nisbet her husband, after general declarator, pursuing a special against the Earl of Abercorn, as intromitting with the goods of the umquhile Lady Abercorn his mother, who was debtor to the said husband in 500 pounds, for payment of the said sum to her, as donatrix;—the Lords sustained this action, notwithstanding the defender offered to purge his intromission, alleging that his umquhile mother's escheat was gifted and declared in favours of Sir James Fullarton, from whom he had obtained assignation thereto, and, conform to the same, intromitted; and so ought not to pay any of her debts. Which allegeance was repelled; seeing the assignation made by Sir James Fullarton was confessed to have been made before the lady's decease, and it was made to a conjunct person, viz. to her own son; notwithstanding whereof the lady still retained possession, during her lifetime, to the time of her decease, at which time the Earl her son intromitted; and so, in respect of the Act of Parliament 1592, the gift is null, in prejudice of the creditors, as this pursuer is; which reply the Lords sustained.

Gibson, Clerk.

Vid. 17th July 1635, Lord Johnston.

Page 775.