Scottish Court of Session Decisions

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

Lord Ross
v.
Ker of Moristown, &c

Date: 20 December 1682

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Mr John Wilkie, having granted an assignation, to his creditors, of some debts due to him by Sir John Wilkie of Fouldown, which was intimated to the Lady Ross, his daughter and heir; and, thereafter, Mr John having restricted the said sums to the half, in favours of the Lord Ross;—alleged for the Lord Ross, That his lady being minor and married, intimation ought to have been made to him, as husband, seeing he now competes upon a right, as creditor. Answered, Although, in cases where wives or minors are prejudged, and are in damno vitando, it may seem reasonable to acquaint the husband or curator, yet the want of that intimation to husbands or curators cannot be obtruded to third parties. And in this case the husband, who could not but come to the knowledge of the said intimation, as he would have been in mala fide to have paid the cedent; so himself being now debtor with his Lady jure mariti, was in mala fide to take any positive right or privative, by a discharge or restriction; and is not so favourable as another person, who innocently might have taken a second assignation, after the first was intimated. The Lords inclined to sustain the answer; but the point was not put to the vote, in respect the creditors insisted in their reduction upon the Act of Parliament 1621.

Page 20, No. 104.