Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due to CAUTIONERS, FACTORS, MANDATARS, TUTORS, &c. Subject_3 As a Recompence for advancing their own Money upon their Constiuent's Account.
Black of Largo v. Dick
Date: 15 November 1627 Case No. No 58.
The act of sederunt 1590, allowing annualrent to cautioners, for sums paid out by them, extended to a debtor bound conjunctly and severally, having a bond of relief from the other co-obligant.
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In a suspension betwixt Patrick Black of Largo and William Dick, as assignee, constitute by Archibald Primrose, to certain sums addebted to him by the said Patrick Black; the Lords found, That the act of Session, made anno 1590, which appoints annualrents to be paid to cautioners by the principal debtor, since the time of payment making by cautioners, albeit the bond bore no annualrent, where the bond bears, that the principal is obliged to relieve the cautioner of all cost, skaith, and expences, should militate in favours of any, who provides himself of the like relief of skaith, damage, and interest, by taking of any other person bound to him therein, albeit he, in whose favours that clause of relief is conceived, be not cautioner for the other, but that they be both bound to the creditor æque principaliter, and not as principal and cautioner; and because Mr Black desired compensation and allowance of a sum, wherein he and Archibald Primrose were addebted to a creditor, whereof the said Archibald was obliged in the bond to relieve the said Patrick Black, and which the said Patrick had paid, being straitened by charges, which all preceded long before the assignation made to William Dick; in respect of the which distress and payment, he alleged that he ought to have retention in his own hands of so many of the sums acclaimed from him by William Dick, and the annualrents thereof sincesyne effeiring thereto, seeing he was subject in annualrent to the said Archibald Primrose for his sums.——The Lords would not allow the compensation for the annualrents of these sums, against William Dick the assignee, seeing there was nothing extant in writ before William Dick's assignation, to verify that Mr Black paid that sum, whereof Archibald Primrose should have relieved him; for the payment was made by William Geichan, brother-in-law to the said Mr Black, which William Geichan, at his payment making, obtained an assignation to the bond in his own name from the creditor, and no record was extant in writ, that it was done to Mr Black's behoof, before the assignation made to William Dick, albeit that Geichan presently offered to make faith, that all was to Mr Black's behoof, which was conceived in his name, and offered to assign the same; whose declaration the Lords found could not prejudge the assignee, being made after his assignation; and because Mr Black took the assignation under trust to another than to himself, albeit he was the only true payer of the sum, the same yet standing in the person of Geichan, who was not denuded before the assignation made to Dick.——The Lords refused to allow the annualrents against William Dick, without prejudice to seek the same against Archibald Primrose, prout de jure. (See Compensation, Retention.)
Act. Hope & Nicolson.Alt. Stewart & Lawtie.Clerk, Scot.
Fol. Dic. v. 1. p. 43. Durie, p. 312.
