Scottish Court of Session Decisions

Subject_1 PAYMENT.

Walter Brebner, Writer in Largo
v.
Anna Cook and James Melville, Merchant in Pittenweem, Her Husband

Date: 20 July 1714
Case No. No 19.

The Lords refused to allow a minor's estate to be adjudged upon a debt purchased in by the curator, and taken in an assignee's name ante redditas rationes, altho' the assignee had, for the said assignation, discharged an equivalent debt owing to him by the curator.

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Christian and Anna Cooks, daughters to the deceased James Cook in Pittenweem, being daughters to Mr Thomas Binning at Dalmarnock, in the sum of 1100 merks principal, and several bygone annualrents contained in a decreet obtained at his instance against them as heirs portioners to their father; Dr Arnot, who married the eldest daughter Christian, was chosen curator to Anna Cook, acquired assignation to the said debt in name of Walter Brebner, his own creditor, upon Brebner's discharging the debt owing by him. Brebner pursued an adjudication against Anna Cook and her husband for the equal half of the sum,

Answered for the defender; That Dr Arnot, her curator, having transacted and paid the debt, and never, to this day, cleared his curatory accompts, he is presumed to have paid the one-half thereof for his pupil with her own means, which he is still presumed to have in his own hands ante redditas rationes; and, as he could have no action against the defender for payment of this debt, neither can Brebner, in whose name he took the assignation, to evite the exception competent against himself, Nam quod non licet directe, non licet per ambages; if it were otherwise, the privilege competent to minors for preventing encroachments upon their estates by their tutors and curators, might be easily eluded by their purchasing in the persons of trustees, rights to the minor's debts, and making them subsist as grounds of eviction of the minor's estate, though purged by his own means, and disappointing the minors of the benefit of eases got from the creditors.

Replied for the pursuer; Had the Doctor paid the debt, and taken a blank assignation, or taken an obligation from Binning to assign in favour of any person he should name, the defender might have had some pretence to say, that she could not be convened ante redditas rationes; but there is no place for it here, where the debt was in the pursuer's name, from the beginning delivered to himself, and never in the Doctor's person. Our law, which so far protects an onerous assignee, as not to allow the oath of the cedent to militate against him, can never allow a personal exception against a third party, who was neither author nor cedent to the pursuer, to militate against him; yea a bond taken by a debtor in his creditor's name, was found not to be affected by arrestment laid on for the procurer's debt, even while it was in his hand not delivered to the person whose name was in the bond, 12th July 1677, Bain contra M'Millan, voce Presumption. Nor can the assignation to the pursuer be understood to elude the law; seeing the Doctor might lawfully pay his own debt, either by money in specie, or in case the creditor did not desire that, by procuring an equivalent right to him, and nemini fraudem facit qui jure suo utitur.

The Lords found there could be no adjudication at the pursuer's instance, as having right from Dr Arnot, the defender's curator, ante redditas rationes.

Fol. Dic. v. 2. p. 51. Forbes, MS. p. 92.