Scottish Court of Session Decisions

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

Lord Yester
v.
Lord Lauderdale

1685. December.

Click here to view a pdf copy of this documet : PDF Copy

My Lord Yester and his Lady having craved a decreet, cognitionis causa, against the Lord Lauderdale, upon his renunciation to be heir to the Duke his brother;—it was alleged for the defender, That he, as a personal creditor to the Duke, had interest to stop decreet and adjudication, by alleging that the debt was paid, in so far as the £10,000 sterling, contained in the Lady Yester's bond of provision, was innovate or implemented in her contract of marriage, wherein £12,000 of tocher was contracted for her by the Duke; and debitor non presumitur donare. Answered for the pursuer, That he could not be hindered to constitute his right against the Duke, whom the defender had renounced to be heir to; and he was willing all defences should be reserved to the defender, in so far as he is creditor to the Duke contra executionem. Replied for the defender, Malitiis non est indulgendum; and the pursuers, without any visible advantage to themselves, would greatly prejudge the Duke's creditors, seeing the passing of one adjudication would oblige all the creditors to do the like, whereby expenses would be accumulated, and the estate rendered less able to pay all the debts; and the defender was content to have debated the pursuer's interest, which they refused. The Lords sustained the defence for the personal creditor, if instantly verified.

Page 2, No. 8.