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Scottish Court of Session Decisions >>
Lockhart v Simpson. [1637] Mor 7801 (27 February 1637)
URL: http://www.bailii.org/scot/cases/ScotCS/1637/Mor1907801-031.html Cite as:
[1637] Mor 7801
Not competent to object against a Party's title, without a Legal Interest. - What understood to be a Legal Interest.
Lockhart v. Simpson
Date: 27 February 1637 Case No. No 31.
An assignation to a bond was executed by a person who had no right to it, but the creditor subscribed the assignation as consenter. The Lords found it was jus tertii to the debtor to plead that the cedent had no right, but they ordained the assigneee to find caution to warrant the defender at all hands.
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By contract of marriage betwixt umquhile Helen Johnston and Laurence Simpson, her son, taking burden for Margaret Simpson, daughter to the said Helen, and sister to the said Laurence, on the one part, and Archibald Hamilton on the other part, the said Helen and Laurence are bound to pay 2000 merks to the said Archibald in tocher good; to which sum, Jean Hamilton, only daughter of that marriage, having made Steven Lockhart assignee, with consent of the said Archibald, her father, which assignation is subscribed by he father, and consented to by him; whereupon, the assignee pursuing the heir of Laurence Simpson for payment, it was alleged, that the contract was null, being only subscribed for the mother and her daughter by one notary, against the tenor of the act 80th, Parliament 1579. This allegeance was repelled, because it was a contract of marriage, whereupon marriage had followed, and that it was subscribed by Laurence Simpson's own hand, whose son is convened. And it being further alleged, that this assignation ought not to be sustained, being made only by the daughter, with consent of the father, to whom the right of the sum did only justly belong, and who cannot be denuded of his right so established in his person, except he had been formally denuded by an assignation thereof, principally made by himself; so that this assignation, which is only a naked consent, cannot be found habilis modus to transmit the full right to the assignee, specially where the father is now dead; this allegeance was repelled, seeing no party having interest to propone this allegeance did oppone the same, and it was not competent to the debtor to propone it; but the Lords ordained the pursuer to find caution to warrant the defender at all hands who might pretend interest to the sum libelled.
