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Scottish Court of Session Decisions >>
Finlayson v Johnston. [1623] Mor 8115 (6 March 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor1908115-004.html Cite as:
[1623] Mor 8115
An heritable bond, when it becomes Personal, so as to be the foundation of Diligence.
Finlayson v. Johnston
Date: 6 March 1623 Case No. No 4.
Found, that a person might comprise upon an heritable bond, where the bond gave liberty to the creditor to ask the money without requisition, altho' there was no preceding charge used against the party to pay the sum, thereby to make it moveable.
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In an action of Robert Finlayson contra David Johnston, the Lords found, that any person might comprise upon an heritable bond, where the bond gave liberty to the creditor to ask the money without requisition, albeit there was no preceding charge used against the party to pay the sum, thereby to make it moveable, except the clause of the bond made express mention, that a charge should precede; for the bond bearing, that the sum should be paid when the party pleased to seek the same, without requisition, and providing that execution of horning and poinding should pass thereupon, as it was lawful to poind the debtor's moveable goods thereupon, without any other preceding charge, so it was lawful to comprise; and that the deducing of the comprising was enough to declare the parties will, that he made the same moveable, seeing the bond bore no clause for any preceding charge to be used.
Act. Nicolson & Cunningham.Alt. Hope & Belshes.Clerk, Gibson.
Fol. Dic. v. 1. p. 536. Durie, p. 56.
*** See a similar decision 27th February 1623, Haliburton against Murthil's Creditors, No 36. p. 3641. voce Escheat.
