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Scottish Court of Session Decisions >>
Laird of Wauchton v Hamilton [1627] Mor 14355 (10 January 1627)
URL: http://www.bailii.org/scot/cases/ScotCS/1627/Mor3314355-001.html Cite as:
[1627] Mor 14355
Subject_1 SERVICE AND CONFIRMATION. Subject_2 SECT. I.
In what Cases is a Service requisite to a nominatim Substitute. - Substitution in Moveables. - Subjects whether to be taken up by Service of Confirmation?
Laird of Wauchton v. Hamilton
Date: 10 January 1627 Case No. No. 1.
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Sir Alexander Hamilton of Innerweik, having borrowed from John Fairly 4000 merks, to be paid at Whitsunday 1606 to himself, or he being dead, to his son William, the Laird of Wauchton, one of his cautioners, having paid the sum after John's death, took assignation from William to the bond in his brother's name, who afterwards pursued Sir Alexander for his relief. It was alleged, first, That it pertained not to William, unless he had been confirmed executor to his father, the sum being moveable, and so of necessity falling under testament; for albert William was substitute in the bond, yet it ceased not to remain in bonis paternis till his death, and so fell under executry, he having verified himself executor to his father. It was alleged next, that an executor could not make assignation of any sums before he had received sentence, (which is kept before the commissaries.)
“The Lords found it was not a naked assignation, but in a manner a discharge, which they thought he might well give ante sententiam; hoc attento maxime, that he was the person unto whom the money was destined to be paid in the bond.”
Fol. Dic. v. 2. p. 367. Spottiswood, (Executor) p. 112.
