Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

John Stirling
v.
Nicol Edgar

Date: 17 November 1664

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Umquhile Mary Home did assign the sum of 200 merks, resting to her by Nicol Edgar, to Mr William Stirling, minister of Edinburgh, for the behoof of such poor persons within the town of Edinburgh as he should think fit. The said Mary being bastard, the gift of bastardy was disponed in favours of David Home; and, by an act of Exchequer, the same was burdened with payment of the said 200 merks, of the date of the gift. Upon which assignation and gift of Exchequer, Mr John Stirling caused arrest the said 200 merks in Nicol Edgar's hands, and raised summons against him and the donatar for payment thereof; but, before Mr John could obtain payment, the gift was declared generally and specially. Whereupon there being a double poinding raised by Nicol Edgar, against the assignee and the donatar, it was excepted by the donatar, That the assignation was null, not being subscribed by two notaries, before four witnesses. To which it was answered, That the donatar could not quarrel, because the Exchequer, who was his author, had acknowledged the solemnity to be sufficient; in so far as, by an act of Exchequer, it was declared that her gift should be affected with the payment of that debt. To which it was replied, That his gift could not be affected with that debt, because it did not bear the same; and the act of Exchequer was but the assertion of one notary, being subscribed by the clerk; and the gift is passed the seals simply, without any such condition. To which it was duplied, That the act of Exchequer being passed simul et semel with the gift, is equivalent as if the same had been expressed in the gift. The Lords found, That the king's donatar was not liable to the payment of the bastard's debts or legacies, unless the same were so conceived in the gift, or the donatar had given back-bond to do the same. But, in regard that this was a pious legacy, they would inquire what was the Treasurer's meaning and custom of the Exchequer in such cases.

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