Scottish Court of Session Decisions

Subject_1 ACCESSORIUM SEQUITUR PRINCIPALE.

Ruthven
v.
Gray

Date: 19 July 1672
Case No. No 9.

A minor assigns a bond gratuitously. The assignee leads an apprising. The assignation is quarrelled upon minority and lesion. The assignee offers to retrocess to the assignation, but not to the apprising. - Ordained to convey the apprising; which, being led upon the minor's debt, must follow it, and accreice to the minor.

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Anna Ruthven, having granted an assignation of a bond of 4000 marks, granted by her father, to Alexander Seaton; he thereupon, and upon several other debts, apprises the estate of her father, Sir Francis Ruthven; which right, came by progress, in the person of William Gray of Hayston; in satisfaction of which apprising, Sir Francis dispones a part of his lands, irredeemable, and Hayston renounces the rest. The said Anna Ruthven pursues a reduction of the assignation, granted by her to Seaton, now belonging to Hayston, upon minority and lesion; which reduction, contains a declarator, that Hayston ought to dispone to her a part of the lands whereto he had right, offeiring to her sum; and having instructed her minority, she insists in the reduction.—The defender alleged, That the act of this process was extracted without his knowledge, otherways he would have alleged, as he now alleges, That the assignation having been made to Seaton, his author, who is liable in warrandice, there ought to have been no process sustained, till Seaton was called; who only knew, and might have alleged, that there was no lesion; because the foresaid assignation was, for an equivalent cause, onerous. 2dly, There is neither law nor obligation upon the defender, to assign his right to this pursuer, but only to repone her; for he might have torn, or burnt, his apprising, or discharged the debtor for nothing; which would not have hurt the pursuer; for the reduction would take off his discharge, as falling in consequence.—The pursuer answered to the first, That it was incompetent now, after litis-contestation, and that it was not relevant; for though, in reductions of heritable rights, authors, liable in warrandice, must be called, that holds not in personal rights; but the defender ought to have intimated the plea to his author. 2dly, The assignee's right being a procuratory, in rem suam, the reduction doth only take away that member of it; that it is not in rem suam; but it remains still a procuratory; so that, what was done by the assignee, as procurator, accresces to the constituent, as if he had used inhibition, or interruption; and generally, the Lords have ever ordained parties to assign their rights, where the assignation is not hurtful to them, and profitable to the other party.

The Lords repelled the defences; and ordained the defender to dispone a proportionable part of the lands; but the defender having offered to prove, that there was no lesion, because there was an equivalent sum paid for the assignation: The Lords would not sustain the same, unless it were offered to be proven, that the sum was profitably employed for the minor's use.

Fol. Dic. v. 1. p. 2. Stair, v. 2. p. 107.