An assignation being granted with absolute warrandice in case payment was not obtained, and the assignee having done no diligence to recover payment, the Lords found the granter liable in payment.
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Sir George Morison of Dairsey made an assignation to umquhile Mr Robert Bruce of Broomhall, to a sum of money contained in a bond granted to him by the Earl of Seaforth, Lord Sinclair, Lairds of Murkle, Lugtoun, and Blackburn; which assignation he did oblige himself to warrant at all hands, and that he should recover thankful payment of the sums assigned, otherways that he should pay to him what sums he should not recover from the debtors. Alexander Bruce, son and heir of Mr Robert, pursues registration of this assignation against Sir George, to the end he may have execution against him for warrandice and payment, payment not being recovered from the debtors. It was alleged, absolvitor, because the assignation being dated anno 1647, the clause of warrandice and repayment could import no such thing as repayment, unless diligence had been done debito tempore, against the debtors; who, if they have now become irresponsal, it should only prejudge the pursuer, being his own and his father's mora, and not the defender's. It was answered, That in the assignation, it was not provided that the receiver should do diligence, but that he should recover timeous payment; but so it is that he did not recover timeous payment: Likeas after the granting the assignation, the troubles of the country having grown, and sinsyne the pursuer having used diligence against the Lord Sinclair by horning, caption, &c. he has done more than he was obliged to do, he not being tied to diligence by the assignation.
