Not competent to object against a Party's title, without a Legal Interest. - What understood to be a Legal Interest.
Lord Ballenden v. The Earl of Annanale
Date: 12 January 1698 Case No. No 38.
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The Lord Ballenden contra the Earl of Annandale, for payment of 9000 merks contained in his bond. The defence was, that this and the other sums left you by the deceased Lord Ballenden are expressly tailzied, so as you can neither alienate, assign, nor contract debs; but in case of uplifting, you are expressly obliged to re-employ the same, that the sors and principal sum may be preserved entire to the next heir of entail; and so the debtor is not in tuto to pay, except the Lords appoint some to see it re-employed. Answered, This is jus tertii to the debtor, who will be sufficiently warranted by a sentence of the Lords; but if the next heir of entail compeared, he might crave to see it re-employed; and, in a former case, between Ballenden and the Lord Drumcairn, in 1688, the Lords found the debtor not concerned in the re-employment of the money.* Some moved, that it should be uplifted at the sight of some to be named by the Lords, but the plurality thought this was to entail a trouble and slavery on the debtors, and to make the Lords curators to Ballenden; and, therefore, they repelled the defence, and found, since his son, the next heir, did not reclaim, the debtor could not stop uplifting under pretence of seeing it re-employed. But this evacuates the design, both of the disponer and his tailzie.
Fol. Dic. v. 1. p. 518. Fountainhall, v. 1. p. 811.
