Found as above where the assignation bore not only abtolute warrandice, but that the sumshould be “good, valid, and effectual.”
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In the suspension disputed betwixt Robert Liddel and Sir John Barclay, the 24th day of November last, anent the importance of a clause of absolute warrandice, (supra,) the suspender further alleged, that albeit the Lords have already found that clauses of absolute warrandice in assignations, or translations, though bearing the assignation to be good, valid, and effectual, doth not import the responsality of the debtor; yet this clause in the translation in question bearing, to warrant the translation, and the sums transferred, to be good, valid, and effectual, must import the responsality of the debtor, because the sums themselves are warranted; which addition of the sums not being ordinary, must have some effect, and can have no other but the solvency of the debtor, and falls not under the general case decided. It was answered, That this addition doth not alter the case; for to warrant the sums, doth only import that they are truly due, and can be excluded by no exception, either personal, arising from the cedent, or any other way, which is implied in the absolute warrandice of the assignation, and the expressing of it here, doth not infer that it must have a special effect, but the solvency of the debtor is never inferred, unless it be expressed.
The Lords found that the clause thus conceived, did not import the solvency of the debtor, and therefore adhered to their former interlocutor.
