Scottish Court of Session Decisions

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

Andrew Spaldine of Ashintully
v.
Robert Murray

Date: 27 June 1672

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Ashintully being debtor to Alexander Ratray in the sum of 500 merks, to which Robert Murray was assignee, he did thereupon charge, and denounce, and take him with caption: whereupon Ashintully did give a bond of corroboration, with a clause that he should never suspend him: Upon which bond, he being charged, did suspend upon a reason of compensation, upon an assignation granted to him, prior to the assignation made to the charger and the bond of corroboration; which being a real exception, and the bond of corroboration being granted for fear of imprisonment and a public affront, the caption being executed in a public market, he ought not to be prejudged thereby of the benefit of compensation founded upon an assignation to a debt due by the charger's cedent, who was now lapsus bonis.

It was answered, That the compensation cannot be now received; because the suspender having granted a bond of corroboration of the terms foresaid, it was a clear passing from any right of compensation to be proponed against the assignee; especially seeing he had never intimated his assignation to the cedent before the charger got a right from him: and albeit compensation be a real exception, and, ipso jure, tollit obligationem; yet the law necessarily requires that it should be proponed; and, by an Act of Parliament, it is not receivable post sententiam.

The Lords did find the letters orderly proceeded, upon these two grounds:— That the bond of corroboration did put the suspender in the case of a delegation, where a person delegated, accepting thereof, can never compensate upon a debt due to him by the delegant:—As likewise that a debtor, albeit he get an assignation to a debt of the cedent's, yet if he do not intimate the same before the creditor be denuded by assignation, and the assignee do diligence against him, he cannot thereupon found a compensation against the assignee.

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