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Scottish Court of Session Decisions >>
George Waddel v Robert Colt. [1789] Mor 5022 (13 February 1789)
URL: http://www.bailii.org/scot/cases/ScotCS/1789/Mor1205022-016.html Cite as:
[1789] Mor 5022
Subject_1 GENERAL ASSIGNATION. Subject_2 SECT. II.
Relative to Thirlage. - Legacies. - General Clauses in Assignations. - What a General Assignation will carry.
George Waddel v. Robert Colt
Date: 13 February 1789 Case No. No 16.
Disposition of all sums of money due by bond, does not comprehend those due by heritable bonds.
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The proprietor of the estate of Garturk executed a settlement in favour of Mr Colt, by which he conveyed to him that estate, and assigned to him “the hail sums of money he should have belonging or addebted resting and owing to him by bonds, &c. with the said bonds themselves,’ &c.
Mr Waddell, the heir-at-law, raised an action declaratory of his having, in that character, right to certain heritable bonds that belonged to the deceased, and to all other debts heritably secured, which were due to him at the time of his death; and,
Pleaded; When any debt is heritably secured, it is understood to have become secondary to the real or heritable right of lands thereby acquired, which last is therefore the immediate and proper object of the law. Hence it no longer comes under a description belonging to moveable subjects. Thus an assignation, mortis causa, to ‘all debts and sums of money,’ was found not to comprehend an heritable bond; Mochrie contra Lind, No 13. p. 5018. And in the case of David Ross contra Elizabeth Ross, No 15. p. 5019, the Court, by a judgment, affirmed on appeal, determined, that a disposition “of all debts and sums of money” was not effectual to convey heritable debts.
Answered; As no argument can be safely drawn from one quæestio voluntatis to another, unless when the respective circumstances accurately correspond, it soems improper to consider the cases that have been quoted, as precedents with respect to the present. Independently of precedent, the express conveyance in question, ‘of the whole sums of money due by bonds,’ would seem inconsistent with the supposed exception ‘of sums of money due by heritable bonds.’
The Lord Ordinary, ‘in respect of the practice of the Court, and particularly in the case of David Ross, repelled the defences.’.
On advising a reclaiming petition and answers, the Court considering, as the Lord Ordinary had done, the decision in the case of Ross to have established a rule, Adhered to the interlocutor of the Lord Ordinary.
Lord Ordinary, Swinton.Act. M. Ross.Alt. Blair.Clerk, Sir J. Colquhoun.
Fol. Dic. v. 3. p. 250. Fac. Col. No 61. p. 111.
