Scottish Court of Session Decisions

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

Andrew Young
v.
John Fairfoull and Somervaill

Date: 10 July 1666

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John Fairfoull as principal, and Somervaill as cautioner, by their bond, dated 2d December 1619, are obliged to pay to Walter Turnbull, chirurgeon, for himself, and in name and behalf of the trade, a certain sum; which bond being assigned by the deacon of the trade, with consent of the masters thereof, to Arthur Temple, he did thereafter transfer the bond to Andrew Young, writer. The debtor, being charged, suspends upon a reason of double poinding; viz. by this charger on the one part, and James Campbell, writer, on the other part.

It was alleged for James Campbell, That he being donatar to the gift of bastardy of John Bisset, chirurgeon in Edinburgh; and having obtained general declarator of the said gift, and a decreet of special declarator against the said John Fairfoull, decerning him to make payment, to the said James Campbell, of the whole goods confirmed by him in Bisset's testament, and meddled with by him: and that he ought to be preferred in the right of the said sum, because he offered him to prove, by Young's oath, that the charge was to the behoof of Arthur Temple, his cedent; at least he offered him to prove that he intented action, and arrested the same; and thereby made the same litigious before the said transaction: which being proven, he offered him to prove, by Arthur Temple his oath, that the true cause of the granting the said bond was a legacy left by the said umquhile John Bisset, bastard, to the said incorporation; whereupon the said John Fairfoull gave bond: which being also proven, the said James Campbell, as donatar, must be preferred in the said sum; because the said Bisset, having died bastard and illegitimate, he had no testamenti factionem; and so could leave no legacy in prejudice of the king and his donatar. And the said bond being truly given for the said legacy, the sum therein contained must be decerned to be the donatar's.

Whereunto it was answered by Andrew Young, That Arthur Temple being denuded in his favours, he could not swear: that the allegeance proponed for the donatar was only probable by Young his oath.

The Lords found that it was only probable, by the assignee's oath, and not by the cedent, that the transaction was to Arthur Temple's behoof.

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