Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Captain Young v. Colonel Wauchop's nearest of Kin
Date: 5 February 1695
Click here to view a pdf copy of this documet : PDF Copy
Halcraig reported Captain Young against the nearest of kin of Colonel Wauchop. This was a competition for the sum of 6000 merks, between the Captain, as executor to his wife, who was the Colonel's sister and assignee, and the Colonel's other sisters. The first point was, Whether he, as being executor decerned, and having found caution, ought to have up the money; or, if they might not crave more sufficient caution. Severals thought he was in titulo, having the office decerned to him; and they could not hinder. Others considered how slightly the commissaries bestowed it upon any who sought it, and were not exact in their caution, for which the clerks were answerable.
The Lords proceeded, therefore, to determine the case, and thought this assignation given by the Colonel, reserving a power to alter, needed no delivery; and that Captain Young's letter to my Lord Edmonston implied a trust left him by the Colonel, in keeping the assignation, but no depositation, these two being very different; and that he could not prejudge his child's right; and, therefore, Edmonston's oath could not be taken as to the terms and conditions of the depositation; and found, the Colonel's letter did not import a revocation or alteration of the assignation; and so preferred the Captain.
