Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Anent Confusion
1677.
November.
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There is a superior, or a lord of a regality, who is debtor to his vassal. This vassal goes to the horn. The superior, or lord of the regality, gifts the escheat for a sum of money. The donatar, in his special declarator, pursues the superior, or lord foresaid, as one of the debtors. He excepts, that confusione tollebatur obligatio, eo ipso momento quo jus eschætæ erat ei devolutum et quæsitum.
Answered,—The debt became not extinct by confusion, unless the superior had declared the gift in his own name, for no sooner was the dominion of the escheat goods established in his person: before that, he has only jus ad rem, like an executor's right in the executry goods before a sentence. Vide supra, a pretty decision in Mr Arthur Gordon's case against Irving of Drum, on the 8th December, 1671, No. 288. And in gifting it, he should have specially reserved and excepted his own debt; likeas if it had been extinct, yet it reconvalesced by the general assignation. Yet quod semel mortuum est nequit iterum revivisci. See anent the Town of Edinburgh's imposition upon the ale, and their getting up their contract anent it from the Lords of Session, in March, 1676; in another paper-book.
