Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Robert Sym
v.
George Thomson

Date: 18 July 1758

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This case is reported in Fac. Coll. (Mor. 1137.) The following is Lord KILKerran's note:—

“July 18.—The Lords altered, reduced the disposition, and remitted to the Ordinary to proceed accordingly.

The Lords agreed that this case should be taken, as of an assignation made in Scotland.

Kaims, the Ordinary, explained the ground of his interlocutor to have not been the act 1696,—that did not affect foreign effects,—but the general ground of fraud, in preferring one creditor to another by collusion; but others took it upon the footing of the act 1696, as comprehending all effects, whether Scots or foreign; and though it is true that as the act cannot limit the judges, or affect the laws of another country, and therefore, that the assignation would have been sustained in England, yet it would be competent on the act 1696 to make him repeat who had drawn in virtue of it; and were there a difficulty in that, in case he had recovered the effects upon a judgment, there can be none, where, as in this case, he has recovered them on voluntary payment.”