Scottish Court of Session Decisions

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

John Scott
v.
Sir Robert Montgomerie

Date: 28 June 1666

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John Scott, merchant, having pursued Sir Robert Montgomerie for payment of a debt owing by Sir James Scott of Rossie to him; and having pursued Sir Robert and his lady, as intromitters with the goods and gear of Sir James Scott;

It was alleged for Sir Robert, That his intromission was by virtue of a disposition from Rossie; and whereof he was in possession before Rossie's decease.

To which it was replied, That no respect could be had to the disposition and possession; because it was by Rossie, his good-father, to him, a confident person, being his son-in-law, and in prejudice of a lawful creditor, et post contraction debiium et realem possessionem; in so far as the pursuer offers him to prove, that Rossie remained in the possession of the whole plenishing of his dwelling-house of Rossie, where he staid aye and while his death, and while they were intromitted with by the defender; so that he being in libello, ought to be preferred to the probation.

The Lords found the disposition of the moveables, with the instrument of possession, sufficient to liberate the defender from a vicious intromission; without prejudice to the pursuer, to pursue for the goods themselves.

Page 65.