Objections, &c. competent to some and not to others.
Caldwall v. Durie
Date: 20 July 1623 Case No. No 60.
In a competition between an assignee and the cedent's creditor, the Lords found that the creditor might object to the assignation as granted stante rebellione, tho' he was not the creditor at whose instance the horning was raised.
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Andrew Caldwall, as assignee constituted be————to certain cattle and sheep, and to the action of spuilziation thereof to be competent against Mr James Durie alleged spuilzier, pursues Mr James for spuilzie. Alleged for the defender, That the pursuer's title, quhilk is the assignation, is null, because made stante rebellione in prejudice of a creditor. Answered, The proponer is not the creditor at whose instance the horning was used, and so not competent. Duplied, Sufficient that he is a creditor, for so the assignation is in his prejudice, and in defraud of execution, whilk he might have craved against these goods.
Find the assignation null, the defender shewing where he was distressed for the pursuer's cedent's debts.
Fol. Dic. v. 1. p. 523. Nicolson, MS. No 113. p. 77.
