Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Murray of Philiphauch
v.
Cuninghame and John Thomas

Date: 13 December 1668

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Murray of Philiphauch having impignorated a silver plate to one Cuninghame, for the sum of £300, by a bond, bearing the particular species, with an obligement, that, in case of not-payment at the term, he should have power and liberty to sell the same; he being countable for the superplus, which was more than the sum for which they were impignorated: The said Cuninghame did borrow a greater sum upon the said plate, and did impignorate the same to one John Thomas, merchant in Edinburgh; who being pursued to deliver the plate, upon payment of the first sum borrowed from Cuninghame: It was alleged, That Cuninghame having power to sell, as said is, the defender was not bound to restore the plate, till he was satisfied of the whole sum for which they were impignorated to him.

This allegeance was repelled, Unless that it were offered to be proven, that Cuninghame had required his money from the debtor, or charged him for payment, before he did of new impignorate the same to another: For the Lords found, That the said clauses, bearing a liberty to sell and impignorate, could not take effect till the debtor was required, or it was intimated to him, that, in case of not-payment, the goods impignorated should be liquidated and disposed of.

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