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Scottish Court of Session Decisions >>
Hamilton of Kinkell v Ayton of Kinnaldy. [1671] 2 Brn 592 (28 November 1671)
URL: http://www.bailii.org/scot/cases/ScotCS/1671/Brn020592-0990.html Cite as:
[1671] 2 Brn 592
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Hamilton of Kinkell v. Ayton of Kinnaldy
Date: 28 November 1671
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One pursuing for implement of a contract to which he had right, it was alleged, I cannot fulfil to you, because your author is denuded by an assignation in favours of ——, who has intimated the same to me, and has recovered sentence. The Lords in præsentia found (they say it was found so before,) it was jus tertii to the debtor; and therefore repelled his allegeance, except he could show an interest.
Alleged he had good enough interest,—lest he be made pay it twice. The Lords found he should suspend on double poinding.
Alleged, it were better to receive it here than needlessly to multiply processes and charges. Yet the Lords found in form it could not be received here, but only in a double poinding.
This pursuit was at the instance of Hamilton of Kinkell against Ayton of Kinnaldy, as heir to his father et cæteris nominibus passivis, to fulfil a contract where by he was obliged to dispone some lands to Kinkell's father, who assigned this contract to one Mr. Henry Danskein; who intimated his assignation, and pursued for transferring this contract against Kinnaldie passive, and obtained sentence. It was confessed by all, if Danskein had recovered sentence for implement it would have been a good defence against Kinkell's pursuit; but being only for transferring, it was not exclusive of the pursuer's right, unless Danskein's representatives did compear and propone on their right, and crave to be preferred; though it was alleged the transferring was equivalent to a decreet for implement, and would receive the self same execution as if it were for implement.
