Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Logan
v.
Mackenzie of Coull

Date: 14 July 1669

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John Levingston, having obtained a gift of Logan's escheat, and likewise comprised from him the right of an apprising, led at his instance against the Earl of Seaforth, did dispone both these rights in favours of Mackenzie of Coull; as likewise, assigned him to a contract made betwixt him and Logan; whereby he declared, that he, being satisfied before a certain day, he should dispone the right of the estate to Logan himself, otherwise that he should have full right to the whole escheat. Whereupon Logan's heir, pursuing Mackenzie, to hear and see it found that his apprising of Seaforth's estate was satisfied by intromission; he alleged, That the whole benefit of the escheat ought to be allowed in the first end of his debt; because, he having right to the said contract, he and his author ought and should have intromitted, and so have satisfied themselves; he having full power to satisfy the same.

The Lords refused to sustain that article of the charge; in respect there was no obligement, in the contract, whereby the donatar was bound to do diligence, and to pursue for the benefit of the escheat; so that, notwithstanding thereof, he might take him to the apprising, and possess, by virtue thereof, until he were paid: And so found that the donatar is not, in law, obliged to do diligence; and might not be pursued upon that ground, that he ought and should intromit.

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