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Scottish Court of Session Decisions >>
Archibald Law v John Ballantyne. [1685] 3 Brn 574 (23 December 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Brn030574-0869.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 23 December 1685
Archibald Law v. John Ballantyne
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The case of Archibald Law, writer, and John Ballantyne, door-keeper to the advocates, was reported by Carse. This was a competition betwixt Law as assignee, and Ballantyne an arrester and inhibiter. They eluded the arrestment, because infeftment had followed on the debt arrested; and, for the inhibition, though it was prior to Law's assignation, yet he offered to prove there was a prior assignation from William Brown of Stevenson, which was given back, and this was taken from John Adam his trustee; and so it must be drawn back ad suam causam, and reputed in implement of the first assignation. Answered,—That cannot be, for the first was absolutely passed from and extinct; and no law can make a resurrection of it. Quod semel extinctum est re-viviscere nequit, et quod nullum est nullum debet sortiri effectum.—If it had been casually lost, there had been some ground to recur, but not where it was deliberately cancelled. Replied,—It was only then laid aside as unnecessary.
The Lords found, that its tenor might be made up ad hunc effectum, for proving that there was a prior back-bond and assignation before the arrestment and inhibition, providing there was no fraud in concealing it, for disappointing William Brown's other creditors; and remitted to my Lord Carse, reporter, to inquire anent the reason of cancelling these writs, and to do therein as he shall find cause.
This being reported again on the 28th January 1686, the Lords found the former assignation has been cancelled animo fraudandi of William Brown's creditors; and therefore reversed their former interlocutor allowing the tenor of it to be proven; and simply preferred Ballantyne's right to Law's.
