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Scottish Court of Session Decisions >>
James Wilky v Hamilton of Monkland. [1692] 4 Brn 2 (11 November 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Brn040002-0003.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Wilky v. Hamilton of Monkland
Date: 11 November 1692
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James Wilky against Hamilton of Monkland, for payment of a sum which was provided to Mr. John, his father, in liferent, and to the said James in fee.
Alleged,—It was paid to the father, who had not only a liferent, but his son's right was only a substitution after his decease; and he, as administrator to him, being then minor, had power to uplift and discharge.
Answered,—The payment, though on a decreet, was collusive and fraudulent, in regard his father was a mere liferenter, and was then notoriously holden and reputed to be bankrupt by my Lord Mordington's breaking; being put to fly to Berwick to shun captions, and having entered into articles with Monkland to give him down a part of the sum to pay him the rest, which instructed the collusion.
The Lords reduced the discharge, and found Monkland's payment unwarrantable, and therefore decerned him to pay it of new to James, the pursuer.
