Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Creditors of Sir James Stamfield v. The Children of James Scot of Bristo
Date: 22 December 1696
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In a debate between the same Creditors of Sir James Stamfield and the Children of James Scot of Bristo, who were pursuing upon an assignation granted to him by the said Sir James the day before he was murdered, viz. in the end of November 1687, to his share of the cloth-manufactory erected at Newmilns: alleged,—It was never a delivered evident, but found lying beside Sir James, and got up by James Scot after his decease. And this allegeance being found relevant, and referred to his oath, he deponed, that, being cautioner for Sir James in considerable sums, and otherwise creditor to him, they communed, that, towards his relief, he should give him this assignation to his part of that stock; and accordingly he met with him the Saturday before his death, and, calling for it, he told him it was subscribed and directed for fcim, and lying on his table; and on Monday, when he returned from the country, (whither he was presently going,) it should be delivered to him; and accordingly, he going to Newmilns, was found that night, or the next morning, strangled; but his table being looked, the assignation to him was found lying thereon subscribed, with a direction for James Scot; and this was contended to be equivalent to a delivery, or a clause dispensing; seeing it is not so much the traditio de manu in manum, that makes the delivery, as a rational act of the will, declaring our purpose, design, and resolution.
Answered,—This could never amount to delivery, because, esto Sir James had returned to Edinburgh, he could have cancelled that assignation; so it was still an incomplete deed, till something like an act of present tradition had intervened. If one should send an assignation in a letter, and die before the letter come to hand, yet it would be reputed a sufficient delivery, because he had done the ultimate act which his death cannot recal; but here it was revocable and alterable at will.
The Lords thought this a too nice and metaphysical tradition, and found it an undelivered evident; and preferred the creditors who had confirmed the subject in controversy; which James Scot neglected to do, relying on his assignation.
