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In an action pursued by the L. Cunningham-head, assignee to the Lo. Kilmaers contra E. of Glencairn, upon a contract, whereby the E. sold to the Lo. Kilmaers certain lands, and obliged him to procure and deliver the renunciation of certain persons, who had wadsets of the saids lands; whereupon the Lo. Kilmaers charging, and the E. suspending, and finding caution the time of the suspension; the matter lying over suspended, he makes thereafter one assignee to the contract; who seeking transferring of that suspension, and act of caution in him as assignee, the Lords found the suspension and act of caution might be transferred, without any new charge, being all done inter vivos; and that there needed no other new charge at the assignee's instance, but that the cautioner found in the suspension stood still bound: Likeas there being a horning produced, whereby Lord Kilmaers was rebel before the assignation made by him, and so remaining rebel then, as yet unrelaxed, it was alleged, That he could not make an assignation to prejudge creditors, as this was. This allegeance was repelled, because the Lords considered that this was an assignation of an heritable right which the rebel might make, and that the act whereupon the allegeance was proponed, should be understood of moveable goods, and therefore the Lords sustained the action at the assignee's instance, notwithstanding of the cedent's being then rebel. See Litigious.
Act. Dauling.Alt. Belshes.Clerk, Scot.
Fol. Dic. v. 1. p. 254. Durie, p. 60.
