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Scottish Court of Session Decisions >>
M'Gilchrist v Stuart of Ambersmore. [1698] 4 Brn 407 (7 June 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Brn040407-0817.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
M'Gilchrist v. Stuart of Ambersmore
Date: 7 June 1698
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The Lord Northberwick, as President nominated, and Probationer, reported the following causes in presence of the Lords, in order to his trial; and afterwards was approven by the Bench, and admitted on his taking the oaths.
The first cause was at M'Gilchrist's instance, against Stuart of Ambersmore, doctor of medicine, for payment of a sum whereto he was constituted assignee. The defence was,—Your title is null, being an assignation to a bond granted to a wife, designing her such; and the sum, jure mariti, falling to the husband, her assignation could give no right. Answered, 1mo.—By a missive-letter you promised me payment. Replied,—That was on a supposition you had a valid right; and must be taken, in terminis juris, to imply a tacit condition.
2do. alleged,—If need be, the pursuer is willing to confirm before extract, tanquam in bonis. answered,—That cannot supply the nullity of the assignation; but the confirmation, in form, should have preceded the intenting of this action.
The Lords did not find the letter sufficient to sustain the defect of the assignation; but found the offer of confirming before extract, enough to validate the title and sustain process: as, where an extract of a bond in the English time, is given out, the same is sustained, the principal being produced cum procemt, and in many the like cases.
