[1725] Mor 615
Subject_1 APPROBATE and REPROBATE.
Date: Alexander Gun of Westerholmsdale,
v.
John Sutherland of Little Torboll
16 February 1725
Case No.No 7.
Found that it was not competent for a son to propone a defence upon an assignation granted by his father, without incurring the passive titles.
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By contract of marriage betwixt Donald Gun and Margaret Sutherland, daughter to John Sutherland of Little Torboll, there was stipulated L. 1000 Scots of tocher, to be paid to the said Donald Gun, by the said John Sutherland as principal, and Alexander, his brother, as cautioner.
Donald assigned this claim to Alexander and William Sutherlands, sons of the principal debtor, equally between them; and they, at the same time, granted a bond to Donald for the like sum to be paid pro rata.
Alexander Gun, son to Donald, as heir to his father, brought an action against John Sutherland, now of Torboll, for payment of the said sum, as representing John Sutherland, his grandfather, debtor in the contract of marriage; and the said Alexander, his father, and William his uncle, debtors in the bond; all upon the passive titles.
The defender acknowledged that he represented his uncle William, who was debtor in the half of the sum in the bond; but denied his representing his father Alexander; and, as to John, his grandfather, whom he did represent, his defence was, that he was only debtor by the contract of marriage, to which the pursuer had now no right, his father having been denuded of it by the assignation in favours of Alexander and William Sutherlands.
It was answered, That the defender could not found on the assignation, in so far as concerned his father's right to the one half of the sum in the contract, without subjecting himself to the passive titles, as representing his father; for that would be to lay hold of, and plead upon a right granted to his father, whom he refused to represent; and, besides, the cause of the assignation was the granting of the bond: So that the res gesta was, in effect, a mutual contract, and the defender could not take the benefit of one part of it without performing the other.
Replied for the defender: That the assignation being both to his father and uncle, the last of whom he represented, he might plead on that paper, because of his Uncle's interest in it, without representing his father: That, by the assignation,
the pursuer's father was denuded of all right to the contract of marriage, which must stand good; and it could be of no import, in point of right, whether the new obligation became, in all its parts, effectual or not; and no regress was competent to the cedent. The Lords found, That it was not competent to the defender to propone on the assignation granted to his father, without acknowledging the passive titles.
Reporter, Lord Cullen. Act. Archibald Stewart, jun. Alt. Alex. Hay. Clerk, Dalrymple.
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