Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

James Johnston of Corhead
v.
The Laird of Johnston

Date: 17 January 1632

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In a general declarator of umquhile Captain Johnston's escheat pursued, at the instance of James Johnston of Corhead, his bastard son, donatar thereto; compears the Laird of Johnston, as one of the rebel's creditors, and, being admitted for his interest, alleges, No declarator can be granted to the pursuer; because, by his bond, given to the treasurer the time of the granting of the gift, the donatar obliged himself that,—he being paid of the expenses debursed by him for passing the gift and declarator thereupon, and being paid of the sums for which he was cautioner for his father, and which was owing by himself, and debursed by him for his father's funeral, and for payment of the sums of money contained in the horning, whereupon the gift was taken,—he should use the rest of the gift by the treasurer's advice, so that none of his father's creditors should be prejudged thereby; and, seeing Johnston was a lawful creditor, he offered to count and reckon with the donatar, and pay him all that was addebted to him by the bond, that he might be paid out of the superplus. To the which it was answered, That this allegeance was not competent, hoc loco, against the general declarator, but against the special. To the which it was duplied, That it behoved to be received hoc loco, seeing the donatar was already in possession of the haill goods pertaining to the rebel, and so needed not to pursue a special declarator. In respect whereof, Johnston was admitted by the Lords to dispute upon his debt against the general declarator.

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