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Scottish Court of Session Decisions >>
George Grahame and Jack v Mr Andrew Brian. [1666] Mor 6754 (3 January 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor1606754-175.html Cite as:
[1666] Mor 6754
An assignee called on to abide by a bond, offered to abide by it as delivered to him as true, and to produce his cedent. This was all that was found to be incumbent on the assignee. But the cedent being bankrupt, it was found that he must enact himself judicially to appear when necessary, and if he did not, the bond should be improved, even as to the assignee, who would not however be liable to the penal consequences, if not accessory.
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George Grahame, as assignee by Jack, having charged Mr Andrew Brian, he suspends and raises improbation, wherein he insists and craves that the assignee may abide by the bond. The assignee declared that he would abide by it, as being delivered to him as a real true done deed, without any knowledge of his in the contrary; and offered to produce the cedent to abide by it; who compearing, it was alleged, That he was a bankrupt, and had a bonorum; and therefore behoved to find caution to appear at all the diets of process, or to enter in prison till the cause were discust; or at least that the assignee would be obliged to produce him.
“The Lords having considered the case, found that the assignee was obliged no further than what was offered, and they found the cedent not obliged to find caution, or enter in prison; but that he should enact himself to compear judicially, whensoever any point of the improbation were referred to his oath, which might infer the falsehood of the writs, if confest; and that, if in that case he compeared not, the bond should be improven, not only to him, but as to the assignee, inferring no hazard to the assignee, as to the criminal part, if he were not found accessory.
Fol. Dic. v. 1. p. 456. Stair, v. 1. p. 332.*** Dirleton reports the same case:
In the case betwixt Mr Andrew Brian and George Grahame, the said George being constituted assignee to a bond granted by the said Brian to Thomas Jack, and having charged thereupon, the suspender offered to improve the bond, and urged the charger to abide by the same, which he was content to do in these terms, viz. That he did abide by the said bond as truly assigned and delivered to him by the cedent; and that the cedent would compear and abide by the same as a true bond.—The suspender answered, That the cedent was lapsus, and had come out of prison upon a bonorum; and therefore he ought to find caution to compear all the diets of the process.——The Lords found, That the cedent should abide by the said bond, with certification, that if he should not appear when the Lords should think fit, for clearing the question anent the falsehood of the bond by his oath or examination, the bond should be declared to be void, and to make no faith both as to cedent and assignee.
