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Scottish Court of Session Decisions >>
The Creditors of Kinminity v Sutherland. [1751] Mor 1727 (23 January 1751)
URL: http://www.bailii.org/scot/cases/ScotCS/1751/Mor0401727-008.html Cite as:
[1751] Mor 1727
Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. II.
What esteemed Fructus Percepti.
The Creditors of Kinminity v. Sutherland
Date: 23 January 1751 Case No. No 8.
Rents uplifted by a person in possession of a judgment of the Court of Session, being expended in defending that right in an appeal, where it was set aside, were found bona fide percepti.
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In the case between these parties, 23d November 1748, D. Falconer, p. 14. voce Heir Apparent, the Lords having found the decreets of constitution could only have effect as decreets cognitionis causa, to affect those lands to which the debtor had a title made up in his person; in consequence removed the sequestration of the estate of Clyne.
The judgment was reversed upon an appeal, but there was no appeal brought against removing the sequestration.
The creditors pursued the heir of Clyne, and his mother the factor, for the rents of the said estate; who defended themselves, that she had employed them, in defending against the appeal: The sequestration being removed, the heir might recover the rents from the factor, and bona fide expend them; and it was the same thing if the factor, his mother, expended them for his use.
The Lords found, that the sequestration being removed, and no appeal brought against the order removing it, the lady was in bona fide to apply rents in her hand, in supporting the Lords decreet against the appeal brought against it.
Reporter, Justice Clerk.Clerk, Forbes.
Fol. Dic. v. 3. p. 95. D. Falconer, v. 2. No 184. p. 224.
