Scottish Court of Session Decisions

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

Mary Cochran, Mr Walter Cochran, and Andrew Thomson

1686. March.

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One having granted an assignation, to his niece, of a bond, without delivering thereof; and she having pursued an exhibition against the cedent's heir,—it was alleged for the defender, That the bond and assignation were never delivered, but remained in the cedent's hands at his death, and bore no clause dispensing with the not-delivery. Answered, That the assignation contains a reservation of the granter's liferent, with a power to alter, which was a rational interest for retaining possession of the writs; 2. The assignation and bond were delivered, in so far as the cedent, before his death, delivered to the assignee the key of his cabinet, where the papers lay. Replied, That a dispensing clause hath the effect of delivery; but such a reservation hath not; 2. The cabinet key was delivered only custodæ causa, as the keys of the cedent's house were. The Lords found, That the niece had right to the bond, and preferred her to the heir.

Page 47, No. 208.