Scottish Court of Session Decisions

Subject_1 PERSONAL and TRANSMISSIBLE.
Subject_2 SECT. III.

What Rights go to Assignees.

Campbell, Prior of Ardchattan
v.
The Captain of Clan-Ronald

Date: 18 June 1631
Case No. No 52.

A charge to enter heir may be insisted in at the instance of an assignee. It does not expire at the death of the cedent.

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There being a decreet-arbitral betwixt the umquhile Prior of Ardchattan, and the umquhile Captain of Clan-Ronald, pronounced by the Judges therein, and the umquhile Prior in his lifetime having charged the eldest son of the umquhile Captain, who was the other party, to enter heir to him; after which charge, the Prior, at whose instance the said charge was executed, having made his son now pursuer, assignee to the said decreet-arbitral, and to the charge given by him to the son of the other party, to enter heir, as said is; the said pursuer, as assignee, pursues the said son, as lawfully charged to enter heir, to make payment to him of the sums contained in the said decreet. And the defender alleging, That that charge to enter heir given to him at the instance of the pursuer's father, who is now deceased, cannot be a ground to sustain this process against the defender, at the said pursuer's instance; for the said charge must expire, and become extinct, by the decease of him at whose instance it was given; for it is a personal charge, whereupon nothing followed in the life-time of him at whose instance it was given, and after his decease cannot be prosecuted by his assignee; but the pursuer, if he would seek any process against him, as representing his father, he ought to charge him de novo at his own instance;—this allegeance was repelled, and the Lords found, that the assignee might insist upon that charge given by the cedent, after the cedent's decease; as an assignee to a summons and action intented by the cedent, may prosecute the same after the cedent's decease. This hath its own scruple, for the assignee cannot always prosecute the act begun by the cedent, after the cedent's decease, as if the cedent had raised letters of horning against his debtor, and after the charge had died, his assignee ought not to have denounced the debtor upon that charge; neither can an assignee to a decreet, execute or do any deed upon that decreet after his cedent's death, while the same be transferred in the assignee, except the assignation had been lawfully intimated in the cedent's lifetime, as was done 23d January 1624, Stevenson. No 24. p. 836.

Act. Mowat. Alt. Gibson. Clerk, Gibson. Fol. Dic. v. 2. p. 78. Durie, p. 591. *** Spottiswood reports this case:

There was a decreet-arbitral pronounced betwixt the Prior of Ardchattan and the Captain of Clan-Ronald, whereby the Captain was decerned to pay a certain yearly duty to the Prior for his teinds. The Captain deceasing, the Prior charged his son to enter heir to him, to the end he might fulfil the said decreet, and after assigns his son John Campbell to the said decreet-arbitral, together with the charge foresaid, and all that had followed on the same. Upon which assignation, after the Prior's decease, John pursued the Captain as son and heir, at least as lawfully charged to enter heir to his father, to make payment of the sums decerned in the decreet. Alleged, No process against the defender as lawfully charged to enter heir, because the charge was used at the pursuer's father's instance, whereunto the pursuer, could not be made assignee; but the cedent being dead, the charge must expire, and the pursuer must use one at his own instance. Answered, The charge being a part of the process, the pursuer must be assigned to it, as well as to a summons, or to any other letters, &c.—The Lords sustained the process at the assignee's instance.

Spottiswood, (Heirs.) p. 142.