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Scottish Court of Session Decisions >>
Sommervell v Sir William Sharp. [1674] Mor 4023 (20 November 1674)
URL: http://www.bailii.org/scot/cases/ScotCS/1674/Mor1004023-002.html Cite as:
[1674] Mor 4023
A donatar to a gift of bastardy being pursued by the bastard's creditors will get allowance of all expenses laid out for the gift, and in pursuing debtors.
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Sir William being donatar to a gift of bastardy, was pursued at the instance of Sommervell, as a creditor to the bastard, for payment of his debt, in so far as he had intromitted with the bastard's means. It was alleged for the donatar, That he ought to have allowance of what he had laid out for the gift by composition and passing the seals, and his true expense laid out in pursuing the debtors, and recovering sentence. It was replied, That in law, a bastard having no means, but deductis debitis, the donatar could take no gift to the prejudice of creditors; and, what he had bestowed upon the gift and other pursuits, it being suo periculo, it ought not to be allowed. The Lords did sustain the defence, and granted the allowance for these reasons, that the creditor could not pursue the debtors without a gift of the King, which he having neglected to crave, the donatar was in bona fide to seek the same, and what charges he had laid out in recovering of the debts being just and necessary, whereupon he was ordained to make faith, so that the creditor could have bestowed no less, he ought in law to be looked upon as negotiorum gestor, and what was profitably, employed ought to be refunded.
Fol. Dic. v. 1. p. 286. Gosford, MS. No 710. p. 429.
