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Scottish Court of Session Decisions >>
Young v Denniston. [1622] Mor 12549 (13 February 1622)
URL: http://www.bailii.org/scot/cases/ScotCS/1622/Mor2912549-434.html Cite as:
[1622] Mor 12549
If probative of its Onerous Cause against Creditors and Donatars of Escheat.
Young v. Denniston
Date: 13 February 1622 Case No. No 434.
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The Lords found, That a disposition made by Alexander Aikenhead to Alexander Denniston, his brother-in-law, being quarrelled by Mr George Young's daughter, a true creditor, was null, unless Alexander Denniston would allege and prove just and true causes of making the assignation to him.
Fol. Dic. v. 2. p. 252. Haddington, MS. No 2598.*** Durie reports this case:
1622. February 12.—In an action betwixt Alexander Denniston and —— Young, daughter to umquhile Mr George Young, it being controverted, if an allegeance, founded upon the act of Sederunt made against dispositions made by bankrupts, and ratified in Parliament, within the compass whereof Young alleged that Denniston's right fell, seeing it was an assignation made to him by a confident and conjunct person, without any just, true, or necessary cause preceding, as the act expresseth, if that part of the allegeance required any probation, viz. bearing, that it was made without any true or necessary cause for which the same was made; seeing Denniston alleged, That the act appointed that that should be proved, either by writ or the party's oath;—the Lords found, that the same was not necessary to be proved, seeing it was a negative which proved itself, and that the party, in whose favour the writ was granted, ought to qualify and allege the just and necessary cause preceding, for the which the same was made to him by the bankrupt to the confident person, otherwise that the same could not be sustained against a true creditor.
Act. Stewart.Alt. Mowat.Clerk, Gibson.
Durie, p. 17.*** Kerse reports a subsequent part of this case:
1622. February 27.—In an action of double poinding, the Lords sustained an assignation made to a confident person by a bankrupt, upon the assignee's declaration, that he took it to the behoof of a third person, who was a creditor; albeit the declaration was disconform to the assignation, and clause therein contained, bearing, that it was made for sums addebted by the cedent himself.
