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Abercrombie v Anderson [1666] Mor 13277 (15 November 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor3113277-048.html
Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Abercrombie v. Anderson
Date: 15 November 1666 Case No. No 48.
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Found that a pursuit upon an assignation after the summons executed, should not be sustained, though the cedent concurred, the pursuit not being at his instance.
Reporter, Newbyth.
Fol. Dic. v. 2. p. 304. Dirleton, No 46. p. 19.*** Stair reports this case:
Mr John Abercrombie, as assignee, having pursued Anderson, as debtor for the debt assigned, he alleged, No process, because the assignation was posterior to the date of the summons and executions; so that the assignation being his sole title, the process could not be sustained. It was answered, That the defender had no prejudice, and that the cedent concurred. It was answered, That the summons was not in the cedent's name, and so his concourse could operate nothing, so that the decreet thereupon would be null; for, in the like case, the Lords, last week, in the cause betwixt David Hamilton and John Kennedy, and Symington, supra, reduced an apprising led twenty years since, because the apprising proceeded upon a charge to enter heir; and some of the debts were assigned to the appriser, after the date of the charge, as to which the Lords found the apprising null.
The Lords sustained the defence, and found no process; and had respect to the said decision of reduction of the apprising, which they found to be, as is related; though it was alleged, that after so long time, an appriser was not obliged to produce the letters of apprising, or charge to enter heir, or executions; yet, seeing de facto these were produced, and deduced in the apprising, and mentioning the dates as aforesaid, the same was reduced pro tanto; but there was no debate reported, whether it should stand pro reliquo, or how far it should extend, seeing the appriser, as to the rest, offered to prove it satisfied by intromission.
Stair, 1. 2. p. 405.*** Newbyth reports this case:
In a pursuit, Abercrombie against Anderson, for payment of a debt, to which Abercrombie was assignee, the Lords would not sustain process at the pursuer's instance, upon the assignation to the debt, in respect the assignation was posterior to the date of the summons; albeit there was compearance made for the cedent, who concurred; and found that they would not in any time coming sustain process whereof the summons was of a prior date to the ground thereof.
