What understood to make a lis pendens. - Assignation granted pendente lite. - Marriage pendente lite. - Encroachments pendente lite. - Titles made up pendente lite.
David Burton Glazier v. William Hamilton of Monkland
Date: 23 July 1707 Case No. No 7.
A debt being assigned after a bill of suspension thereof had been past against the cedent, it was found that the passing of the bill without intimation, did not render the subject litigious, so as to give the debtor the benefit of the cedent's oath.
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David Burton Galzier having charged William Hamilton of Monkland to make payment of 2000 merks assigned to the charger by Hamilton of Dalziel, he suspended upon this ground; that he offered to prove by the cedent's oath, that the sum assigned was only in trust in his name; for the behoof of John Hamilton of Bogs; which being proved, no charge could be sustained therefore against the suspender, because Bogs was his tutor, and had not cleared accompts.
Alleged for the charger, The debt being assigned for an onorous cause, the suspender could not have the benefit of the cedens's oath.
Answered for the suspender, That he had presented a bill of Suspension, which was past against Dalziel the cedent before intimation of the assignation, whereby the debt became res litigiosa and so he must have the benefit of the cedent's oath, As February 15, 1662, Pitfoddels contra Glenkindy, voce Proof, it was found that a debtor pursuing reduction of his bond against an assignee, ought to have the benefit of the cedent't oath; notwithstanding it was alleged, that the debtor calling him in the reduction as assignee, could not pretend his right was not intimated. And indeed nothing is more required to make res litigiosa, but a party's signifying his mind as to the right by a legal remedy, which no doubt was done by obtaining the past bill of suspension, after which no diligence could have been done by the creditor or his assignee till the days of the sist had elapsed.
Replied for the charger, Nothing can render a subject litigious but deductio in judicium before the assignation was intimated; so that there having been no intimation of the suspension, nor citation upon it before the assignee's intimation, it is impossible that the subject could be litigious. For the passing of a bill is no judicial act to which any body is cited; and before intimation the cedent himself might have proceeded to diligence. The decision adduced is not to the point, for there the cedent's oath had been taken before the dispute came in about it. And the Lords found that the process at the debtor's instance, wherein the assignee was called, could not be such an intimation of the assignation as to exclude the cedent's oath.
The Lords repelled the reason of suspension, and found that the passing of the bill of suspension without intimation, did not render the subject litigious, so as to give the suspender the benefit of Dalziel's oath.
