Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sir Robert Barclay of Peirstone, v. Liddell and Others
Date: 10 November 1671
Click here to view a pdf copy of this documet : PDF Copy
November 10. Peirstone having had dealing with one Robert King, tailor; after count and reckoning, King is found his debtor in L.1100; they agree that Peirstone take an assignation to a bond of the like sum owing to King by Sir Francis Ruthven of Reidcastle, in satisfaction; only he warrants the assignation at all hands, and against all deadly. King dies, his relict marries to one Liddell, merchant. Peirstone discovering, after two or three years, Reidcastle's condition to be such that he would not easily recover his money, he comes back upon the representatives of his cedent, offers to repone them again to their own right, and craves they may be decerned to pay him the said sum, conform to the clause of absolute warrandice contained in the assignation.
It was alleged It was now out of all controversy, yea become a maxim in law, that it imported not what were the warrandice inserted in an assignation or other personal right, whether the same were absolute or made only from facts and deeds; seeing in such it was all one thing, and had but one and the self same signification: and whatever way it was conceived, it was only interpreted to be from facts and deeds, and comprehended these two things and no more, videlicet, quod debitum vere subest, and that the cedent has undoubted right to the same, and such a right as will exclude all others from the said sum, and that he has not made, nor shall not make double assignations; but in no sense or law* does it import the responsality of the debtor, since the assignee takes that on his own peril, et sic caveat emptor, especially if the term of payment contained in the bond, be come, and so if the assignee may instantly charge and distress for the sum; but if the term of payment be not come, then though strict law requires it not, yet bonum et æquum seems to say that the cedent shall warrant the responsality of the debtor till dies solutionis be come, or a term after: in which time, if he do no diligence for recovery of the sum, then sibi imputet, it is his own fault, it is just he suffer for his negligence; neither will any law ever allow him regress upon the clause of warrandice, for getting off the cedent what he cannot recover of him whom he once accepted to be his debtor. But we are no ways straitened in this case, to insist on the rigour of law; for not only here debitum vere suberat, and I the cedent had the sole undoubted right thereto, and consequently you my assignee, but also (which is more than we need to say,) Reidcastle, the debtor, was most responsal the time of the assignation. If you had but charged upon the bond, he would have paid the money: and he being debtor to you in far greater sums upon other accounts, ye got payment of them since this assignation, voluntarily, without the least legal distress; which is a clear demonstration ye might have recovered this lesser sum likewise, if ye had used any diligence. But what reason is there that I should stand bound for the responsality of a debtor, where ye have the power of application, where it is in your free will and option whether you will put him to it or no, so long as he is able? Is it anyways just that ye shall neglect to do diligence for recovery of it till the debtor turn insolvent, because, forsooth, ye judge yourself secure, imagining to have recourse back upon me? whereas if I had not made over the right to you, I would have done diligence debito tempore myself and gotten it. And that this is no novelty, appears, because there is an express decision already in it, betwixt Wm. Hay and; wherein a cautioner paying the debt, and taking assignation to the bond, with a clause of absolute warrandice, the Lords found the creditor assigner not bound for the principal
*And the civil law is most clear; 1. 4 and 5 D. de hæreditate et actione vendita; ibique Mornasius, in Commentariis.
debtor's solvency, but allenarly that it was a true debt, and as yet unpaid quoad the principal. Vide supra No. 129, (13th February 1671.) Codex Fabrianus page 421, definitione ibi 15. See Stair's System, tit. 13. Of infeftments of property, No. 38, p. 220.
To this it was replied,—They confessed that the ordinary clause of absolute warrandice in an assignation implied no more than from fact and deed, but contended they were in a different case; and it behoved to import more here, because he not only warranted the assignation and the right at all hands and against all deadly, but likeways the sums; which words can admit of no other sense but this, he shall be liable to make the assignation effectual,* quocunque modo it be rendered ineffectual, whether by the debtor's irresponsality or otherways. As for the practique it noways meets; because it is obvious to every body that a creditor getting payment from his cautioner (whom he assigns to the bond for his speedier relief) can warrant no more but allenarly the debt, and that it is yet unuplifted by him from the principal; and it were ridiculous to say he should be liable to refund the sum again to the cautioner, if he could not recover payment upon the assignation, which is noways our case.
My Lord Newbayth inclined to find the allegeance relevant, and to assoilyie from the summons; yet was content to give them the Lords' answer, whether a cedent giving absolute warrandice will be liable for the sum to the assignee, if the debtor was not responsal the time of the assignation.
Advocates' MS. No. 246, folio 110.
November 24.—The debate set down at No. 246, betwixt Peirston and Liddell, about the warrandice in an assignation, being taken to avizandum, the Lords, after long debates in their own presence, found (and declared they would make it a constant rule hereafter, for putting the lieges in surety,) that absolute warrandice in an assignation imported no more but allenarly that vere debitum subest, and that he is such a debitor qui non est tutus ulla exceptione, and that it is yet resting unpaid, and that no other has right to it; but noways imported the responsality or sufficiency of the debtor, and that it should be recoverable of him, or if ye cannot get it off him then ye shall recur against the cedent: and this notwithstanding of the specialties alleged, viz. That he not only warranted the right but also the sums. 2do, That he obliged himself to make it effectual. 3tio, That the law non tenetur præstare locupletem sed tantum debitorem was only in emptione nominis, in which case it is just the buyer take his hazard because he gets an ease in the bargain: sed hoc non tenet in cessione seu delegatione. All which the Lords repelled, and found ut supra. And, therefore, pro futuro, no assignation should be taken but expressly with this quality, that if he do not recover the sum by virtue of that assignation, then he shall recur again to the cedent, or that he shall make the debt good and effectual at all hands: and to make it equal on all hands, it should bear, the assignee always doing diligence within such a definite time as they shall agree upon; and the diligence would also be qualified, viz. the length of the registrate horning or otherwise, as they shall agree. And when one
*The word “effectual” has a great emphasis in it, though some call it but stilus curiæ, and that it imports no more than the words good, valid, and sufficient.
takes an assignation to a bond in corroboration of a debt owing him by the cedent, he will do well to advert what diligence he is tied to do.*
Before this decision many advocates were in a mistake as to the import of this absolute warrandice.
Peirston having lost the interlocutor, then offered him to prove it was communed and agreed to by this defender, that he should warrant the debt against all accidents that could befal it.
The Lords found this relevant to be proven scripto vel juramento; though it was alleged that he should not be heard to found on that now, because of his supine negligence in letting the debtor turn insolvent, and not putting him to it by the space of three years.
Advocates' MS. No. 270, folio 115.
*The Lords were also moved with the authority of President Spotswood, who in his practiques is of this opinion. There were also French plaidoiez and arrests adduced for it by my Lord Newbayth. See Peleus his Actions Foreuses singulieres. Lib. 5, Act. 15, pag. 259.
