Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BENEFICIUM CEDEND ARUM ACTIONUM
Subject_3 Is a co-debtor entitled to receive assignation of diligence from the creditor for speedily operating relief?

George Manderson
v.
James Erskine

Date: 14 January 1780

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[Fac. Coll. VIII. 189; Dict. 1386.]

Kaimes. The creditor ought in equity to assign: it will not hurt him; and it may afford ready execution to the cautioner.

Monboddo. A cautioner may demand an assignation, both by the Roman law and ours.

Gardenston. There are two very old decisions, and an opinion of Mr Er- skine, founded on; but still I think that the decisions and the opinion are erroneous. A thing which is innocuæutiliiatis to the creditor, and may be useful to the other party, must be done; and it is peevish to oppose it.

Alva. When A man does no more than pay his own debt, he cannot demand assignation.

President. A creditor is entitled to take his payment, but he must not do it emulously. In the case of the creditors of Buchan, it was found that creditors were not obliged to assign.

Justice-Clerk. In the case of bills, it is not understood that the creditor is bound to assign.

Braxfield. The granting of an assignation may not seem a matter of much moment to one who is not conversant in the negotiation of bills; but when L.500 bills pass through a man's hands every day, it would be a great embarrassment to commerce were he bound to assign as many of them as debtors pleased: the very loss of time, and the necessity of giving attendance on such occasions, would be distressing. The granting of assignations was introduced into the law of Scotland, from principles of equity, in the case where the secondary creditor had no right to the subjects without assignation. A creditor has no business to enter into the question, How the co-obligants are bound to each other. If the co-obligant can point out any relief which he may obtain by the assignation, and which he has not at common law, then the creditor must assign ex equitate.

President. I shall not dispute the obligation to assign bonds; but, as to bills, it would introduce inexpressible confusion.

[The Lords did not determine the general point, but laid hold on the particular circnmstances of the case; and so avoided a vote.]

On the 14th January 1780, “The Lords, in respect that diligence had been done, and a decreet obtained, found that the creditor must assign the decreet, in order to operate relief;” altering Lord Alva's interlocutor.

Act. G. Buchan Hepburn. Alt. R. Sinclair.