Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Captain Alison
v.
Lord Dumfries;

and

Balgony
v.
Clerk

1682. March.

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The Earl of Dumfries, being pursued on his bond of 5000 merks, assigned j proponed compensation on a holograph note due by the cedent, to which the defender acquired right since the cedent's death. Answered, The pursuer had raised a process for payment of the bond before the defender's right to the holograph tone. Replied, The assignation, not being intimated in the cedent's lifetime, the bond assigned remained in bonis defuncti, so as the assignee could not pursue thereon till he confirmed the same; and the defender's ground of compensation, though acquired after the commencing of the pursuer's action, must be sustained, since it was before his confirmation of the subject assigned.

The Lords, in respect there was a competition of creditors, found the defunct was not fully denuded, unless the assignation had been intimated before his death; and so sustained the compensation; although, when the creditors do not compete, a cedent is looked upon as fully denuded by an assignation, though not intimated in his lifetime, and the sum assigned would fall under the assignee's escheat, if claimed by the donator, and no creditor of the cedent be competing.

The Lords also inclined to have sustained an adjudication led on such an assignation, in the cause of Balgony against Clerk, this same month, as a formal diligence; seeing the competitor did not derive right from Muir the defender's author, but from Carnegy the common author to Clerk and Muir, whose debt was fully established, although Balgony had not intimated his assignation in Muir's life: but this point was not voted in Clerk's cause.

Page 60, No. 253.