Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
- Kennoway v. George Monteath
Date: 7 November 1693
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In the competition between Kennoway, in Lithgow, and George Monteath, for a sum in Sir Robert Miln of Binny's hand; the Lords preferred the fiar of the sum to Monteath, who was assignee constituted thereto by her father, who, as he was liferenter of the sum, so he was administrator of the law to her, being then minor: and though he had right to uplift, yet the debtor ought to have seen it reemployed in the terms of the first destination; and, though it was assigned by him, yet, being still in the debtor's hand unuplifted, she was preferable; though he offered to prove his assignation was granted for an adequate onerous cause. If it had been paid to the assignee, then the debate would have arisen on the bona fides, and the prevention of diligence; but it determined the Lords much that it was yet entire. And Monteath urged, that lately the Lords had found, in the case of Inglis and Dicks against Hays, that a tutor might innovate the pupil's securities, by rendering that sum heritable, which, at the time of the defunct's decease, was moveable, et è contra, though it disappointed the succession. But that differed toto cœlo from this; seeing, there, it was only an act of administration, and did noways prejudge the minors, which this does.
