Scottish Court of Session Decisions

Subject_1 ESCHEAT.

Creditors of Sir David Baird
v.
Erskine

1739, Jan. 13.
Case No. No. 1a.

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This case was argued at the Bar and on the Bench two full days, upon the question, Whether a creditor obtaining a gift of escheat fallen by his own diligence, and granting back-bond to denude after payment in favours of other creditors be liable in any diligence, and in what? (in which Lord Arniston having declined himself being one of the creditors in the back-bond, pleaded the cause about one hour and a half.) The Lords generally inclined to think, that a donatar would not be liable for exact diligence, that is neither for culpa levissima nor culpa levis, but that such donatar is liable for dole or culpa lata, that is supine negligence, and in so far differed from the decision observed by Lord Harcarse in February 1686, betwixt Creditors of shenes and B. Hamilton.* But they did not incline to give a general interlocutor determining an abstract relevancy, and remitted therefore to me to enquire and report what diligence was done, which I did this morning;—and upon report the Lords unanimously found no such negligence as to make the defender liable for the arrears in question.

* Dict. No. 25. p. 3490.