Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Thome
v.
Thome

1683. December.

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A person to whom another, in liege poustie, disponed all his goods, and assigned his bonds and tickets, having taken an instrument of possession of the goods, without intimating the assignation, and the goods having remained in the disponer's possession till his death; these, with the bonds and tickets, were confirmed by one as executor-dative to the disponer and cedent, who pursued for delivery of the bonds. Alleged for the assignee, That the pursuer, who is an executor-dative, and not an executor-creditor, is bound to warrant the assignation, though not intimated; and there was no necessity of confirmation. The Lords found, that, though the disponer remained in possession, the executor-dative, who represents him in moveables, could not object against the instrument of possession, so that there was no place for confirming the goods; but the assignation, quoad nomina debitorum, not being intimated in the defunct's lifetime, the sums therein were in bonis defuncti, and conformable for the security of the debtor's making payment; but that the executor was liable for them to the assignee. And many were of opinion, that the assignee would be preferred to other creditors doing diligence against the executor, unless they had affected the subject by some preferable diligence. But the creditors were not there competing.

Page 125, No. 458.