Scottish Court of Session Decisions

Subject_1 ESCHEAT.
Subject_2 SECT. VI.

Competition Single Escheat with Assignation.

Robert Bones
v.
Barclay of Johnston

Date: 9 July 1662
Case No. No 49.

Found as above.

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Robert Bones having arrested certain goods and bestial, as belonging to John Wood, his debtor, in the hands of Barclay, pursues for making the same furthcoming.—The defender alleged, absolvitor, because the goods libelled, the time of the arrestment, were the defender's proper goods, disponed to him by the said John Wood, for anterior rests and debts, and delivered also before the arrestment.—It was replied, The defence ought to be repelled, because Wood the disponer was rebel and at the horn, before the delivery of the goods at the pursuer's instance; and whereby the tradition being after the horning, the disposition is null, as being incomplete before the horning; and after the horning, the rebel could do nothing to prejudge the King, or his donatar, or the pursuer, for the debt, whereupon he was denuded, which by the act of Parliament 1621, affects goods ubicunque.—The defender answered, That the reply is not relevant, unless it were alleged that the horning had been before the disposition; for it is lawful for creditors either to poind, arrest, or take dispositions of their debtors goods though rebel, being for debts anterior to the horning, if the disposition and delivery be prior to declarator; neither can the act of Parliament 1621, against dispositions in defraud of creditors, operate here; because the disposition is anterior to the horning, and for an onerous cause.

The Lords found the defence relevant, notwithstanding the reply.

Fol. Dic. v. 1. p. 255. Stair, v. 1. p. 123.