Scottish Court of Session Decisions

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

Alexander Baillie
v.
George Mitchell

Date: 15 November 1672

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In a reduction of a bond of 600 merks, granted by the said Alexander to William Reid, merchant, and assigned by him to George Mitchell, upon the reason, That the bond was granted for an apprentice-fee, as may appear by the bond and indentures being both of one date and written and subscribed by that same writer and witnesses. But so it is, that William Reid was so far from educating his apprentice in the trade of merchandizing, conform to the indenture, that he himself became bankrupt within a few months, and the apprentice forced to leave him; and, therefore, the bond was null, as being causa data causa non secuta.

It was replied, That the bond bearing borrowed money, the defender was in bona fide to take assignation thereto, for an onerous cause, being a just creditor; so that the reason of reduction could not militate against him, but only against the cedent.

It was Duplied, That the indenture and bond being in effect as one deed, and being known to the defender before he obtained the assignation, which was granted after the cedent was known to be bankrupt, the reason ought to militate against the assignee as well as the cedent.

The Lords having debated amongst themselves, if it was sufficient that the assignee did know the cause of the bond to have been for an apprentice-fee, did not give their interlocutor upon that singly, but found, That his knowledge, and the receipt of the assignation, when he knew the cedent to be bankrupt, was relevant against him, as well as the cedent, to be proven by his oath. But as to the first point,—if the naked knowledge of the cause of the bond should put him in that same condition with the cedent? it seems that the point would have been more difficult; for the debtor, granting a bond for borrowed money, payable at a term, for an apprentice-fee, is for a just cause; and anv person, for an onerous cause, (albeit he knew that to be the cause,) might lawfully take an assignation thereto; after which, the superveniency of the cedent's becoming bankrupt, ought not to prejudge the assignee. And, on the other part,—it being known to an assignee, that a bond for borrowed money, for performance of a deed which had tractum futuri temporis, it was sufficient to put the assignee in mala fide to distress the debtor, when that bond was granted causa data causa non secuta. Yet it seems, that, in point of law, the assignee could not be suspended upon that ground; seeing the money might have been uplifted and disposed of by the cedent before the outrunning of the apprenticeship; and, therefore, might have been assigned. But no interlocutor was given thereupon.

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