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Scottish Court of Session Decisions >>
Alexander Abernethy v Arthur Forbes. [1676] Mor 11492 (10 February 1676)
URL: http://www.bailii.org/scot/cases/ScotCS/1676/Mor2711492-166.html Cite as:
[1676] Mor 11492
Where the cause of granting is expressed, that must be the rule.
Alexander Abernethy v. Arthur Forbes
Date: 10 February 1676 Case No. No 166.
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The Lord Saltoun having given a bond of 20,000 merks to Alexander Abernethy, upon account of his service, and of the service done by his brother James Abernethy; thereafter the said Lord Saltoun did grant a bond, making mention that the lands of Auchincleuch belonged to him and his authors, and that the said Alexander had been instrumental to obtain a reduction of the rights of the estate of Salton to the behoof of the said Lord Saltoun, and therefore obliging my Lord Saltoun to infeft him in the said lands.
The Lords found, that the said bond being after the former and for the causes foresaid, and having no relation to the said former bond of 20,000 merks, that it should be in satisfaction of the same, could not be interpreted to be in satisfaction thereof. And the brocard debitor non preæsumitur donare does not militate in this case, seeing the Lord Saltoun was in a capacity to give both the said bonds by way of donation; and the question was not betwixt the said Alexander and the creditor, but betwixt another person to whom thereafter he had gratuitously disponed his estate.
