Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Reach
v.
Polwart

1685. November.

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A relict having, as executor-creditor to her husband, pursued his son of a former marriage for the sum in a bond, which she proved, by his oath, he had taken out when his father was dying, and [got] renewed in his own name, without any assignation from the father;—Alleged for the defender, That he, being creditor, by his contract of marriage, to his father, anterior to the pursuer's marriage, might take payment from him, or a bond to be delivered to the father's debtor, upon which the defender might get payment, or new security; 2. The defender has a gift of his father's escheat. Answered for the pursuer, It is not denied but the defender might have received payment or assignation from his father; but the bare having of the bond imports not the transmission of a right thereto, especially when it appears not, by writ or witnesses, that the father delivered the bond ad hunc effectum; 2. The pursuer was confirmed executor-creditor before the gift in favours of the defender; and all the legal diligence of creditors affecting moveables, anterior to the gift of the debtor's escheat, are preferable to the donator. The Lords sustained the second answer made for the pursuer, which did determine the cause without necessity to consider the first. Vide No. 457, [Auld against Smith, February 1684.]

Page 127, No. 467.