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Scottish Court of Session Decisions >>
Campbell v Malcolm Macaulay. [1707] Mor 9989 (27 February 1707)
URL: http://www.bailii.org/scot/cases/ScotCS/1707/Mor2409989-014.html Cite as:
[1707] Mor 9989
A party assigned an heritable bond which thereafter was adjudged from the assignee. In a process for payment at the adjudger's instance, he was not obliged to produce the principal bond and assignation.
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Alexander Robertson couper in Leith, being debtor to Anna Campbell, relict of Adam Gordon, merchant in Leith, in a certain, sum; she, for her payment, adjudges from him the right of an heritable bond granted by Macaulay skipper in Leith, to John Leslie, and by him disponed to Robertson her debtor, being 1000 merks; whereupon she pursues Macaulay for payment of her debt, who alleged, That he was not in tuto to pay her, as Robertson's legal assignee by adjudication, because his bond is produced, without which he cannot safely pay, especially seeing it is assigned by Leslie, and none of the mid-couples are in campo, and so, if the progress be defective, he may be forced to pay it over again.—Answered, I being a singular successor and adjudger, I neither had, nor was obliged to have my debtor Robertson's heritable bond, nor the mid-couples and progress thereof; it was my debtor's evident, and so he could keep it up and abstract it from me with all his art and power; and I am no more bound to produce it than an arrester is, where the debtor's oath, acknowledging the debt in a furthcoming, is sufficient to make him liable, without producing his bond. But, 2do, I instruct him debtor scripto, (which is more than I am bound to do) by a submission and decreet-arbitral, wherein this 1000 merks bond due by Macaulay is expressly mentioned; which furnishes a sufficient document and evidence of the debt against him.—Replied, That the decreet-arbitral can never constitute a debt; for, 1mo, It is suspended, as being ultra vires compromissi; 2do, It can only prove a moveable personal debt against him, which can never be carried by her adjudication; and she has an easy remedy, to take a diligence and recover her author's right thereby.——The Lords thought it hard to burden her, and therefore repelled Macaulay's defence; and found the decreet would be a sufficient warrant for his payment; especially seeing there was no other creditor competing with the said Anna Campbell for her sum.
Fol. Dic. v. 2. p. 49. Fountainhall, v. 2. p. 353.
