Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Sir Robert Drummond
v.
Lawrie of Blackwood and George Hamilton

Date: 26 January 1676

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Sir Robert Drummond disponed his estate of Meidhope to Sir John Drummond for 33,000 merks, and assigned him to sums extending to 20,000 merks, redeemable in his own time only, and bearing this clause,—“That if the right should become irredeemable, Sir John should be obliged to pay 3000 merks to any person Sir Robert, or his lady should leave the same to in legacy, the estate being freed of debts and burdens.” Sir Robert assigned this sum of 3000 merks to his lady, and she transfers the same to George Hamilton; Sir John having given in several debts to affect the lands of Scotstoun, disponed by Sir Robert, to him, upon deathbed.

It was alleged by Lawrie of Blackwood, who had adjudged the interest of Sir Robert's apparent heir, in the lands of Scotstoun, That Sir John behoved to deduce the 3000 merks which Sir Robert had power to legate; and had exercised the faculty by this assignation.

It was answered for George Hamilton, That he had the only right to this 3000 merks; for, albeit it be provided, That Sir Robert may leave it in legacy, which imports, that he may do it in testament, or on deathbed, yet, he is the fiar of the sum; and might dispose of it by assignation, as he hath done. And as to the creditors, they neither have, nor can affect this sum, before it was transmitted from Sir Robert, by his assignation; but seeing, Sir John, who hath right to all the debts, and had his option to insist against Sir Robert's estate, real or personal, but hath affected Scotstoun therewith, he cannot be forced to quarrel Sir Robert's assignation; nor hath he any ground to quarrel the same; Sir Robert's whole debts being satisfied otherwise, and he no bankrupt nor insolvent. And albeit the assignation were on deathbed, yet, by the conception of the clause, “that it might have been by way of legacy,” it is sufficient: and the apparent heir, to whose behoof Blackwood hath adjudged, would be obliged to warrant Sir Robert's assignation.

It was replied, That the assignation, being upon deathbed, is, in effect, a legacy, which can never take effect but deductis debitis.

The Lords found, That Hamilton had the best right to the sum, by Sir Robert's assignation; and that Sir John, who was the only creditor, could not be compelled, or had no interest to quarrel the same.

Vol. II, Page 404.