Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Blair v. Blair of Balgillo
Date: 31 January 1671
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Balgillo being debtor to the Laird of Denhead in a certain sum of money, he assigns it, in 1632, to Guthry of Coliston, who, in 1633, charges as assignee. This charge Balgillo suspends upon divers reasons, and debates it then with the assignee. The matter lies over; and, in the mean time, the assignation to Guthry perishes through the iniquity of the times. In 1648 Denhead makes a second assignation of it to Coliston, narrating, that where he had made him a former, and that the same was now lost, therefore he made him over a new right of the same. Coliston's assignee craving this bond and assignations to be transferred against this defender; it was alleged, The same can never transfer, because the same was paid to Denhead the cedent, before the date of your assignation in 1648. To which it was replied, That Denhead's discharge produced could never exoner him, but he behoved yet to make payment of it to the pursuer; unless he would say the discharge was anterior to his assignation or intimation of it in anno 1632. Duplied, He needed not say that, because non constat if there were such an assignation, seeing it now cannot be shown, et de non apparentibus et non existentibus idem est judicium. Triplied, He could never be heard to deny that assignation, seeing 1mo, The second assignation taken in 1648, proports the same to have been, and to have been lost. 2do, His reason of a suspension was a sufficient acknowledgment of the assignation which they produce, together with sundry minutes in a dispute that followed thereon in 1635. Quadruplied, That the said assignation in 1648, and the raising of suspension in 1635, will be good adminicles for making up the said assignation in an action for proving the tenor of it; but that it should prejudge the debitor now when the same cannot be shown, is against all reason; for esto it were produced it might be null for many reasons; it might be so questionable that it would not be sustained for the ground of a pursuit or charge; or dato it had been a valid assignation, yet it might have been given back to the cedent, and he retrocessed.
They were to have the Lords' answer upon this. See something like in Papon's arreists, Lib. 10, T. 5, des payments Cap. 4to. where a man craving to be reponed against the discharge, and in the pursuit the discharge being found to be lost, the libel was found no acknowledgment of the acquittance. Vide supra, 28th January, 1671, Gibsone.
