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Walter Young v George Young, Merchant in Edinburgh. [1706] Mor 10160 (10 July 1706)
URL: http://www.bailii.org/scot/cases/ScotCS/1706/Mor2410160-021.html Cite as:
[1706] Mor 10160
Walter Young v. George Young, Merchant in Edinburgh
Date: 10 July 1706 Case No. No 21.
Assignation to a plea granted for the cedent's behoof, after he had been debarred ab agendo by a registered horning judicially produced; sustained to allow process to proceed at the assignee's instance, without regard to the personal objection against the cedent, who continued unrelaxed.
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Walter Young having charged his brother George upon his back-bond, to denude of some bonds that were in trust in his person, he suspended, and at discussing of the suspension, the charger being debarred ab agendo by a registered horning, he then assigned his charge to James Dundas of Breistmill. When the assignee insisted, it was alleged for the suspender, That the horning against the cedent must debar the assignee quia pendente lite nihit innovandam, and the jus quæsitum to the suspender, by the sustaining his defence upon the cedent's not having personam standi could only be taken away by a relaxation; especially considering, that the assignation to Breistmill is gratuitous for the cedent's behoof.
Answered for the charger; The debarring ab agendo by a registered horning being odious, and merely a personal objection, affording no advantage to the proponer, cannot meet the assignee who has personam standi. Nor has the suspender any prejudice by admitting the assignee to supply the fictitious legal incapacity of the cedent; since the suspender is not excluded from any defence or manner of probation competent against the cedent; and so nihil innovatur by the assignation to the suspender's disadvantage, as he could pretend no jus quæsitum by debarring of the cedent except a delay.
The Lords repelled the objection against Breistmill, that his cedent was debarred, and sustained process at his instance, though the assignation was for the cedent's behoof.
Fol. Dic. v. 2. p. 85. Forbes, p. 120.*** Fountainhall reports this case.
Walter Young of Winterfield, pursues George Young merchant in Edinburgh his brother, for L. 1000 Scots, he had uplifted of his. Alleged, The debt was owing by Campbell of Lawyer's father, and he had got as much for it as any other of his creditors; but seeing he refused to stand to that transaction, but rigidly craved him to hold count for the whole, he was necessitate to use any remedy law gave, and so he produced a registered horning, and debarred him ab agendo. Upon this, Walter assigned the debt to Dundas of Breastanbrea; and he insisted; it was alleged, That this was fraudem legi facere, to make an assignation pendente lite, especially being gratuitous, and without any onerous cause, and contrary to that brocard of law, that lite pendente nihil est innovandum; and there being a jus quæsitum to him, it could not be taken away by any such collusive deed, else that effect of civil rebellion taking away their personam stanti in judicio is not worth a rush, but can be eluded by assigning the next moment after it is objected; and the only remedy law knows is relaxation, and if he will not follow that method which law prescribes, sibi imputet, and till that be expede, the defender is free from that instance, and not obliged to answer his gratuitous assignee. Answered, Debarring by horning is odious, and founded on feudal delinquency, where oft-times it is impossible for the poor debtor to obey the will of the letters; and is only a personal objection that meets the rebel himself, but not his assignee; and the defender shall have no prejudice, for the assignee declares, that whatever can be said against his cedent shall malitate against him, and if he have any thing to prove by his oath, he shall get it. The Lords found the objection personal, and could not meet the assignee, but he might carry on the process notwithstanding. Some of the Lords thought the regular way was by letters of relaxation, which may be got without suspending the debt, and so does little wrong to the creditor; but the plurality sustained the assignation, in respect of his declaration, that whatever was competent against the cedent, either in causa or per modum probationis, should meet the assignee; only the assignation is much cheaper than by expeding letters of relaxation, which burdens him with paying 20 merks to the treasury for the escheat goods.
