Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by LORD KILKERRAN, ADVOCATE.

Thomas Boyes
v.
John Ogilvie

Date: 2 February 1739

Click here to view a pdf copy of this documet : PDF Copy

This case is reported by Elchies, (Cautioner, No. 7.) where the circumstances are stated. Lord Kilkerran's note is as follows:—

“The general point of jus superveniens accrescit would per se not have been sufficient to support the interlocutor; for notwithstanding of such accretion, as between buyer and seller, yet still the separate right being duly affected by a creditor, would remain with that creditor, in competition with the purchaser, though this was not the subject of any argument at this time, the Lords being all clearon the second ground, that the creditor is bound to assign all separate securities to the cautioner, not ex equitate only, but de jure, and that, if he have aliened such securities to a third party, he cannot thereafter be heard to quarrel the validity of such securities which he himself has conveyed.”