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Scottish Court of Session Decisions >>
James Miln v The Creditors of Miln of Newmiln. [1692] 4 Brn 3 (12 November 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Brn040003-0005.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Miln v. The Creditors of Miln of Newmiln
Date: 12 November 1692
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In the competition betwixt James Miln, bailie of Montrose, and the other creditors of Miln of Newmiln; the Lords refused to admit this allegeance after litiscontestation, at the advising, that James being donator to the escheat, he was bound to have done diligence for his own payment; seeing such donators [1ike executors creditors) have the only title to pursue established in their persons, and should not allow the debt to perish. Likeas, the Lords thought a donator not liable for omissions, unless he had debarred others from intromitting; and here James had obtained a decreet and brought it the length of a caption, but had not executed it; therefore, they ordained him to assign his diligence to the other creditors.
See the act of sederunt, 14th Nov. 1679, anent executors creditors being obliged to do diligence; and Stair, 17th January 1678, Crauford, where a donator was not tied to omissions; only, there was a second gift in that case; but the Lords mainly repelled it in Miln's case, because not proponed debito tempore; though a relevant allegeance either in jure, or instantly verified when in facto, is receivable even at sentence.
