Scottish Court of Session Decisions

Subject_1 ASSIGNATION.
Subject_2 Nature and Effect of an Assignation.

Stewart of Kincarachy
v.
Mary Hay and her Husband

Date: 11 June 1745
Case No. No 21.

Diligence being once begun in name of the cedent, cannot be carried on in name of the assignee. Necessary for the assignee to raise new diligence.

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Thomas Blair of Newton being creditor by bill, and decreet of the Sheriff thereon, to the Lord Ruthven, charged him with horning; and having died, Mary Hay, his relict and executrix, gave up this debt in inventory, as contained in the bill, decreet and precept, which were the warrants of the horning: and thereon she, with concourse of Charles Foggo her second husband, arrested in the hands of my Lord's tenants, without raising any new diligence.

David stewart of Kincarachy obtained an assignation to the rents, which he intimated after the arrestment.

Pleaded in a competition for the assignee, that by constant practice, diligence raised in any person's name is never put in execution after his death; Messengers are only executors of diligences not judges of the transmissions of rights, and therefore the will of the letters is their rule.

In cases of poinding, the law has of necessity allowed Messengers to be in some fort judges; but this is not to be extended to executions of other kinds, where no such law or practice has intervened; and hence it is, that messengers in a poinding may, upon payment, discharge the debt, but the executor of a horning cannot, being no judge, but tied up to the will of the letters.

It is admitted, that the effect of the diligence led by the defunct, belongs to the executor; and it is only contended that it cannot be put to further execution in his name, but he must raise new diligence.

Pleaded for the executor, the confirmed testament is a complete assignation in her favours, and as an assignee is procurator in rem suam, and can prosecute the cause either in his own or the cedent's name, it follows he can take it up in the same shape it was left by the cedent; nor will his death vary the case, since procuratories in rem suam may be executed after the death of the granter.

2dly, By the practice of the Commissary Court, diligences as well as debts are given up in inventory, and the present subject was given up as contained in the decreet and precept thereon; and though the horning be not mentioned, yet as the precept was its warrant, it is apprehended to have been sufficiently conveyed.

3dly, Whatever defects the conveyance of the horning was subject to, were sufficiently supplied by the judicial power of the messenger, who, on seeing the translation of the right, might, as Sheriff in that part, proceed: For as by the civil law, upon a case being decided, the Magistrate was applied to, that he might name judges to put the sentence in execution, which procedure was called the actio rei judicata, Matheus de judiciis, disp. 12. § 11. & 12.: so in our law messengers are by the King's letters constituted judges for the execution of sentences.

The Lords ordained the Writers to the Signet to report the practice in cases of hornings, poindings, and arrestments, whether ever used in the name of assignees or executors; on which they reported, that it was the constant practice in all these cases to raise new diligence; whereupon, having heard the report made by the Keeper and whole body of the Writers to the Signet, with respect to the practice, they sustained the objection to the arrestment. (See Execution, Warrant of.)

Reporter, Lord Drummore. For the Arresters, Maitland. For the Assignee, Craigie. Clerk, Gibson. Fol. Dic. v. 3. p. 46. D. Falconer, v. 1. p. 96.

See February 5. 1745, Elizabeth Ramsay against the Creditors of Clapperton.

D. Falconer, v 1. p. 62. voce Passive Title.