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Scottish Court of Session Decisions >>
Muir v Calder. [1635] Mor 831 (8 December 1635)
URL: http://www.bailii.org/scot/cases/ScotCS/1635/Mor0200831-019.html Cite as:
[1635] Mor 831
Subject_1 ASSIGNATION. Subject_2 Nature and Effect of an Assignation.
Muir v. Calder
Date: 8 December 1635 Case No. No 19.
The assignee can be in no better situation than the cedent would have been.
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Umquhil Henry Hunter was addebted to Thomas Barber in 300 merks: This Henry having left behind him only one daughter, that lived not long after, his means fell to two sisters, Janet and Bessie Hunters. John Muir, who married Janet, paid the sum to Thomas Barber, and took assignation of it in the Laird of Annistoun's name. John Muir of Annistoun, the assigney's son, sought to have this bond transferred against Richard Calder, grandchild to Bessie Hunter, the other sister, and who had served himself heir to the said Henry Hunter his grand mother's brother. Alleged, No transferring; because offers to prove, that the said bond was paid by John Muir, husband to Janet; which John was debtor of the said sum, in so far as he having married the said Henry's sister, and apparent heir portioner did intromit with his goods and heirship, and disponed certain of his lands and heritages, the price whereof, with the goods intromitted with by him, will be more than the bond libelled. Replied, That this ought to be repelled; because, any payment made by John Muir was not to the effect Henry his heir should be liberate, but rather to burden him; for he, seeing that he was such a party as might be burdened with the payment of the said bond, made payment of it, and took assignation in Annistoun's name, that he might lay it on upon the heir again, which was very lawful for him to do; so that it was not solutio, but rather nominis emptio: And as to his intromission, it was with his own goods belonging to him jure mariti; and although they came to him by his wife, yet he was not bound for that to undergo all her debts; and that although, perhaps, if he had been convened for it in his own time, he would have been found liable to it; yet, now he being dead, his interest ceasing, (seeing he was only conveenable pro interesse et non principaliter), the allegeance must be repelled specially in consideration of the assigney, who being a singular successor, cannot be obliged to pay this, whatever might have been said against the cedent. Duplied, The assigney can be in no better case than the cedent; and if the cedent's own name had been in the assignation, no question but it had been unprofitable to him, even so must it be where he borrowed another's. And it is most reasonable, that, this bond being paid out of the debtor's own gear, his heir should not be burdened with it again; and that the pursuer's cedent having reaped the benefit, should be liable to the burdens, quia querm sequuntvr commoda eundem sequi dcbeht et incommoda. The Lords found the allegeance relevant.
