BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Burnet v Auchterlony and Ogilvie. [1697] Mor 8363 (12 February 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor2008363-049.html Cite as:
[1697] Mor 8363
Alienation after Rebellion bars not the Completing Rights, where there is an antecedent obligation.
Burnet v. Auchterlony and Ogilvie
Date: 12 February 1697 Case No. No 49.
A party was creditor to a person before he was put to the horn. After rebellion, he granted to his creditor a back-bond. Another creditor, who had obtained a gift of escheat, was preferred.
Click here to view a pdf copy of this documet : PDF Copy
In the competition between Mr George Burnet and Auchterlony, and Ogilvie in Montrose, the Lady Halgreen, by her husband's order, had delivered some blank bonds to these defenders, wherein they had filled up their own names; and being pursued for the money at the instance of Mr George, as donatar to Halgreen's escheat, they alleged that they were anterior lawful creditors to Halgreen, as well as the pursuer, and that they had received these blank bonds in part of payment; and the filling up their names was equivalent to an assignation.—Answered, Though their debts were anterior, yet their bonds are granted after the rebellion, and year and day was expired; and so the donatar must be preferred, unless they had received actual payment before the gift and declarator; in which case, favore solutionis, the creditor so getting payment is secure against the donatar, as has been oft found; and particularly, Veitch against Pallat, No 91. p. 2874, No 127. p. 1029, and No 159. p. 1073. The Lords preferred Burnet the donatar.
Fol. Dic. v. 1. p. 556. Fountainhall, v. 1. p. 767.
