WILLIAM YOUNG v JAMES BAILLIE (Court of Session)

Baillie advocated, on the 40th section of the Judicature Act, and pleaded —1. Young is barred, personali exceptione, from insisting in the action; because the claim on which the action is laid existed prior to the time when his estates were sequestrated, and was not specified in any state of his affairs under the sequestration, by which the whole estates were invested, for behoof of his creditors, in a trustee; 54. Geo. III. c. 137, § 25, 29, 33. 2. The respondent is not reinvested in the right of action, and has no title to pursue.

If the advocator had been purely a third party , the plea would be jus tertii, as held in the case of Chalmers v. Taylor, Nov. 20. 1832. But here he was a creditor, and has been paid by composition. The Lord Ordinary does think that this may possibly raise a question in equity as to him, in case the constitution of the debt be proved; and therefore he has left that open by reservation. But still there seems to be no bar to the action.’

The Court thought it would be a strict interpretation of the oaths taken by Young in his sequestration, to hold, that having subsequently discovered this claim, he was barred from suing for it. The objection was received with less favour, coming from the advocator, who brought up the cause on the mode of proof, and then turned round with this objection to the right of the respondent to insist.

Lord Ordinary, Moncreiff. For Baillie, Dean of Fac. (Hope,) Buchanan. Jo. Cullen, W. S. Agent. For Young, Sol.-Gen. (M'Neill,) and Cheape. Thos. Leburn, S S. C. Agent. T. Clerk.