Scottish Court of Session Decisions

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

James Room
v.
Robert Cleland

1687. December.

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James Room, of London, having charged and denounced James Weir, his debtor, from whom James Cleland got, after the denunciation, an assignation for a debt due before the horning, and Room having, some months after the assignation was intimated, procured a gift of escheat upon his own horning, there arose a competition between him and the assignee. Alleged for the donatar, That, although the Lords have preferred assignees, and the receivers of voluntary rights, where they recovered payment, or got the debt innovated by a new security in their own favours, the competing assignee here can claim no preference, in respect the debt assigned is still unuplifted, and no innovation of the former security made. Answered, There is no rational difference, whether the sum be uplifted or not; for, jus est plene quæsitum to the assignees, and the cedent's property altered by the intimated assignation; nor can consumption alter the case, seeing the subject is as much extant, after a new bond, as if the old had remained; 2. Whatever might be pretended, had the donatar prosecuted his horning with ordinary diligence, yet, he having lain off two years before he obtained his gift, it were a disturbance to commerce to find, that, during so long a time, persons might not contract with the rebel, and receive payment of their debt, even by voluntary assignations; and here the donatar could not, as a stranger, pretend ignorance of the horning, which was his own deed. The Lords, in respect of the donatar's so long negligence, preferred the assignee to him. And, if the donatar had insisted upon the Act of Parliament 1621, the same defence of negligence would have been obtruded. Vide No. 91, [John Chancellour against Major Baitman, February 1687;] and No. 153, [1aurence Gellaty against Stuart, 3d February 1688.]

Page 118, No. 439.