Scottish Court of Session Decisions

Subject_1 SERVICE AND CONFIRMATION.
Subject_2 SECT. V.

Whether requisite where the Subject is in the Possession of the Heir or Executor? - Whether the Father's Possession the same with the Childs?

Smeiton
v.
Ro Hamiltion.

Date: 8 December 1610
Case No. No. 30.

An assignation omnium bonorum will not be sustained without confirmation, unless in so far as possession had been obtained during the cedent's life.

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An assignation to the hail life-rent and hail goods and gear whatsomever pertaining a defunct, having taken little effect by possession, and action being moved thereupon after the cedent's decease, the Lords would not find the assignation lawful for any farther than had beginning of possession in the cedent's lifetime; and found not the assignation lawful and valid for such goods, gear, annualrents, farms, or others, whereof the assignee had acquired no possession, nor moved any action in the lifetime of the cedent. Thereafter Smeiton alleging possession in the lifetime of the cedent, of the most part of all the goods and rents contained in the assignation, the Lords found his answer relevant to sustain his assignation.

In that same cause, the Lords found, That a sasine given of an annual-rent, by virtue of a precept contained in the sasine, was not lawful, unless the precept were produced, or possession alleged or proved.

Fol. Dic. v. 2. p. 369. Haddington, MS. No. 2047.