Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Ramsay
v.
Demperstoun

Date: 27 November 1633

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Albeit, before the commissaries, an executor may not assign any part of the defunct's debts to one of the defunct's creditors, before sentence be recovered against the defunct's debtors, establishing the debt in the executor's person, and thereafter the executors may assign or discharge as they please. Notwithstanding, an executor having constituted one of the defunct's creditors factor, in rem suam, to a debt owing to the defunct, and the factor having pursued before the commissary of St Andrew's, it was alleged by the defender, That no process could be granted at the factor's instance, whose factory was equivalent to an assignation; because the executor's cedent had not obtained the debt, established in his own person, by decreet. To the which it was answered, That the factor, being a creditor, might pursue in the executor's name. Which exception being repelled by the commissary, the defender raised advocation upon iniquity, and the same being disputed before the Lords, they remitted the cause to the commissary, and ordained the executor to concur with the factor in pursuit of the action.

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