A legacy of a bond in special was sustained, tho' the executor had an assignation thereto from the defunct.
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Alexander Falconer pursues Mr John Dougal for payment of 1000 merks, left in legacy by umquhile John Dougal, by a special legacy of a bond, addebted by the Earl of Murray, whereupon he convenes the Earl as debtor, and Mr John Dougal as executor, for his interest, to pay the special legacy. The Executor alleged, That the sum belonged to him, because he had assignation thereto from the defunct, before the legacy. The pursuer answered, That, hoc dato, there was sufficiency of free goods to make up this legacy; and albeit it had been legatum rei alienæ, yet being done by the testator scienter, who cannot be presumed to be ignorant of his own assignation, lately made before, it must be satisfied out of the rest of the free goods;
