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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nicolson v Simpson [1837] CS 16_211 (9 December 1837) URL: http://www.bailii.org/scot/cases/ScotCS/1837/016SS0211.html Cite as: [1837] CS 16_211 |
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Page: 211↓
Subject_Process—Lis alibi pendens.—
An action having been brought for payment of a debt by an assignee thereto, was thereafter allowed to lie over; a fresh action was raised against the same defender, on the same media, by a new assignee, the original assignee being dead, and the second assignation being granted with consent of an additional party,—Plea of lis alibi repelled.
In 1829, an action was raised against the defender Simpson by John Ritchie, as assignee of Messrs Tod and Hill, W.S., for payment of a debt contracted by Simpson's mother to the firm of Russell, Anderson, and Tod, the assignor's predecessors. A record was made up, but never closed, and the action lay over. Thereafter Ritchie died, and in 1836 Tod and Hill granted a new assignation, but with consent of Anderson, the former partner for any right or interest he might have, in favour of the pursuer Nicolson.
Thereupon Nicolson brought a fresh action against Simpson on the same media and for tbe same debt. In defence, it was pleaded inter alia, Lis alibi pendens, in respect of the former action, which might have been
insisted in, and in which Ritchie's representatives ought to have been sisted. Nicolson answered that there was a reason for the new action being brought, Ritchie the original assignee being dead, and Anderson having been made a party to the second assignation. The Lord Ordinary repelled this preliminary defence, “reserving to the defender to take such steps as he shall be advised to obtain decreet of absolvitor in his favour from the conclusions of the action brought against him at the instance of the deceased John Ritchie.”
The defender reclaimed, but
The Court adhered, finding additional expenses due.
Solicitors: Fotheringham and Lindsay, W.S.— Walter Duthie, W. S. — Agents.
