Paction by Declarators, Back-bonds, &c. relative to Personal rights; when real; when personal?
Keith and L Glenkindie v. Irvin
Date: 23 December 1635 Case No. No 21.
Compensation was sustained against an onerous assignee, where the debt existed before the assignation, and was contained in the contract on which the bond assigned depended.
Click here to view a pdf copy of this documet : PDF Copy
Alexander Irvin of Fortrie being obliged by contract betwixt him and Patrick Gordon of Kincraigie, to grant to him in his name, but to Patrick Keith's proper use, two bonds, the one of 400 merks, the other of 500; in which contract the said Patrick Keith is also bound to deliver to the said Alexander Irvin certain bolls of victual; according to which contract, the said Alexander Irvin having subscribed the said two bonds to the said Patrick Gordon, wherein nor relation was made to the said contract, nor bore to be done to the behoof of the said Patrick, but two pure and simple bonds of borrowed money, to which two bonds the said Patrick Gordon having made Keith and L. Glenkindie assignees, and they charging thereupon the said Alexander Irvin to pay, he suspends upon compensation of the victual owing by the said Patrick Keith to him, conform to the said contract, which was the ground of the bonds whereupon he was now charged, and which compensation, he alleged, ought to be received against these assignees, as it might be received against Keith his debtor, or against Gordon their cedent, who acquired the right of the bonds, albeit in his own name, yet to the behoof of Keith, as was appointed by the contract; and albeit the bonds be pure and simple, and neither make mention that they are given to the behoof of Keith, nor yet depend upon the contract; whereby it was alleged, that this reason of compensation cannot be received against these chargers, who are true creditors to Gordon, and who seeing the bonds in their debtor's name, and to be simple, not affected with any quality or condition, were in bona fide to take assignation thereto, and ought not to be prejudged by any other bargain betwixt this suspender and the cedent; likeas they alleged, that the compensation cannot be received against them who are assignees for a true just debt owing to them; and so much the rather, because the debt owing to the suspender by Keith, is only liquidate since they were made assignees, and since their charges executed thereon, and since the time that they obtained protestation against a prior suspension raised in this same matter; notwithstanding of which allegeance, the Lords found the reason of compensation relevant, as well against the assignee as against the cedent, and found it would have militated against the cedent, as if Keith's name had been insert in their bonds, in respect, albeit, the bonds were simply made to Gordon, yet the same behoved to be reputed conform to the contract, to be made to the use of Keith, who was the suspender's debtor; seeing it could not be qualified that there was another cause, whereupon the said bonds were given to Gordon the cedent; and albeit, the debt was liquidated since the charge, yet the compensation was relevant, seeing the debt was existant before the assignation, and was contained in the same contract, which was the ground whereupon the said two bonds depended, as said is.
Act. Nicolson & Davidson.Alt. Gilmour.Clerk, Gibson.
Fol. Dic. v. 2. p. 63. Durie, p. 787.
