Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Henry Trotter of Mortounhall
v.
The Heirs of Line of Mr John Trotter of Charterhall, and The Laird of Rentoun

Date: 21 July 1675

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Mortounhall, as having right by translation to the sum of two thousand five hundred merks, due by the Laird of Rentoun to Trotter of Charterhall, did pursue for payment.

It was alleged for Rentoun, That he could not be in tuto to make payment, because the assignation was so qualified that the monies could not be uplifted but to reëmploy, conform to the particular provision therein contained, in favours of the heirs of provision and persons substituted after the death of the assignee.

It was answered, That it was jus tertii to the Laird of Rentoun, who was debtor, and in whose favours there was no clause of provision.

The Lords did repel the defence, and found, that the debtor ought to be decerned to make payment, which would exoner him: reserving to the heirs of line, or any other person substituted, to be heard before the extracting of the decreet, upon the reëmployment of the said sum; conform to the special provisions contained in the assignation. Thereafter, compearance was made for Walter Stewart, as creditor to the heirs of line of Charterhall, who did grant the assignation, and, having arrested and intented reduction, in their name, of the assignation, ex capite lecti, did crave that the money ought to be made forthcoming to him; and the reason of his reduction might be admitted to his probation.

It was answered, That the arrestment could give no right, because the pursuer was content to lose the same: and, for the reduction ex capite lecti, it could not be sustained at the instance of a creditor of an apparent heir, seeing he could have no interest, unless there were an heir served and retoured, whereby he might establish a title in his person, as a lawful creditor, and thereby affect the sums by a legal diligence which was not yet done; and so could not be reserved to him, as accords.

It was replied, That a creditor of an apparent heir may pursue any right which may be competent to his debtor, if he were served heir.

The Lords did repel the defence, in respect of the reply; and found, that a lawful creditor to an apparent heir had a good interest to reduce any right made by the defunct, to whom they might be served, seeing their voluntary lying out ought not to prejudge their creditors; and that they having reduced any right might stand in their way, they might with an assurance take a legal course how to establish a lawful title in their person, to recover any debt or right that would belong to the apparent heir, their debtor.

Page 493.