Effect of Prestations in Mutual Contracts as relative to Assignees.
Shearer v. Cargill
1686.
February. Case No. No 62.
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Peter Shearer, as assignee by James Bell, to a part of his wife's tocher due by Thomas Cargill of Auchtedonald, having pursued an adjudication against Auchtedonald; alleged for the defender, That adjudication could not proceed for the sum, nor was he liable to pay the same before James Bell the cedent did secure his wife in a liferent provision, conform to the contract of marriage; for the obligements on the contract of marriage being mutual, as the cedent could not seek payment nor adjudge for the sum before first he performed his part of the contract, neither can Peter Shearer the assignee. Answered, That the assignation being granted to the pursuer for an onerous cause, he may seek payment, and adjudge for the sum, albeit the cedent has not performed his part of the contract, as has been several times decided; and the wife's friends may go on in diligence against James Bell the cedent, for fulfilling his part of the contract, as accords. The Lords allowed the adjudication to proceed, but with the burden of the obligement of the contract of marriage, in favour of the wife.
Fol. Dic. v. 1. p. 598. Sir P Home, MS. v. 2. No 782.
