Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

Katharine Maxwell and her Husband
v.
Gordon of Carleton

Date: 26 July 1716

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Two points in this debate, having been determined the 12th instant, the pursuer Katharine Maxwell, now contends, 1mo. That the defender Carleton, can only seek relief of so much as he really paid to Mr. John Fraser. 2do. That the defender should be obliged to assign to her the heritable bond, with all other diligences wherein Kilwhannady was principal, and her father only cautioner, with the infeftment thereon in favours of Fraser; to the effect that she might have her relief, which was competent to her father against Kilwhannady's estate and representatives.

Answered for the defender,—1mo. That as he does not controvert, that if the Major, or any that owned their representing him, were in the field, they would have the benefit of the ease; so the pursuer can have no claim to it, because her interest as creditor to her father was extinguished by her father's payment, and she had no other right. 2do. That the defender cannot be obliged to assign, till the pursuer make up a right to the claim her father might have against the defender, which is competent to the father's heirs or executors only: to which the pursuer has made up no title, and therefore can crave no assignation; because nihil illi deest as creditor, she being paid by uplifting Earlston's money.

The Lords found the pursuer could not be liable to allow further than the sums for which Fraser's debt was transacted; and that the defender ought to assign her against the principal for her relief. Vide supra, 12th July, 1716.

Act. Ferguson. Alt. Boswall. Sir James Justice, Clerk.

Vol. II. No. 28. page 36.