Scottish Court of Session Decisions

In this case the pursuer sues for payment of £100 contained in an I O U granted by the defender to his brother William Cuthbert in the year 1855. She alleges that William handed it over to her in 1857 in payment of money he owed to her, and also that the document had been assigned to her by him by a written assignation in 1863. The defender pleaded that the delivery of the I O U in 1857 gave the pursuer no title to sue for payment of it, and that when the assignation was granted in 1863 William Cuthbert had been divested of all right to the document by the sequestration of his estates, which took place in 1858. The Lord Ordinary has dismissed the action in respect the pursuer has no title to sue. To his interlocutor is appended the following

“ Note—The Lord Ordinary is not altogether free from a feeling that the pursuer may have been hardly dealt with as respects her claim against the bankrupt, in respect of which it is alleged he delivered the I O U to the pursuer. But it appears to him that as regards the merits of the present action against the defender as the granter of that acknowledgment of debt, the pursuer had no title whatever to sue, as in right of that document, until she obtained an assignation from William Cuthbert, who was named as the creditor therein. It was not in its own character a negotiable instrument, and bore, ex facie, a specific address.

But, further, long before she had obtained any formal title by assignation, Wm. Cuthbert had been sequestrated; and consequently, by force of that process, all right which he had in the I O U had been carried to and vested in the trustee in the sequestration, and he (Wm. Cuthbert) was no longer in a capacity validly to assign the I O U to the pursuer.

If this be so, the assignation now founded on by the pursuer as a title is inept and ineffectual. It is said, it is true, by the pursuer that the trustee in the sequestration has resigned, and that the bankrupt is discharged; but it is not denied, as the Lord Ordinary understands, that the latter was discharged without a composition, and was therefore not reinvested in his estate; and there is no evidence to show that the process of sequestration is truly at an end, while it is denied that it is so,

However, therefore, the case might have stood, had the pursuer been able to verify all the statements

Page: 129↓

made on her behalf, the Lord Ordinary finds himself unable to see grounds on which to give effect to her alleged title. She had no such title, as he thinks, at the date of the assignation by Wm. Cuthbert, because the right to the I O U was then in his trustee and creditors; and if the pursuer cannot show how and when that right has now become effectual to her she must fail in her action.”