Scottish Court of Session Decisions

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

Dundas of Ballendary
v.
Mr George Wilson of Pleughlands

1686. December.

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Mr George Wilson, who was to pay 4000 merks to Dundas, having assigned him to Fordel Henderson's bond for the like sum, with absolute warrandice qualified thus, That in case the assignee using due and exact diligence, by registrating the bond, raising horning, poinding, and arrestment, and discussing any suspension of the charge, should not recover payment, then the cedent was to be liable after retrocession of the right and diligence: The assignee, having suffered Fordel to live thirteen months after, without doing any diligence against him, recurred, after his death, by a pursuit, against the cedent. Alleged for the defender, That the pursuer had neglected to use the diligence above-mentioned, by which he might have recovered payment; and now Fordel's affairs are turned in such confusion as the defender will find it difficult to recover the money. Answered for the pursuer, The pursuer is under no positive obligement, by the clause, to do diligence; for it imports only a delay of recourse till the diligence be done, which is now imprestable, when Fordel is dead; and yet the pursuer hath done the equivalent, by adjudging against the heir as soon as any other creditor: Nor had the pursuer any reason to charge and distress Fordel incivilly; who was represented and reputed solvent, and been trusted by the defender with the money, for fifteen years before assignation, without using any diligence; 2. There is no time appointed for the doing of diligence in. Replied, No time is the present time. The Lords decerned against the cedent. Vide No. 124, [Sir James Dick against William Dick of Grange, February 1688.]

Page 23, No. 117.