A bond of corroboration given by a person under caption for the debt found to be unchallengeable.
Click here to view a pdf copy of this documet : PDF Copy
Andrew Spalding being debtor by bond to Alexander Rattray in the sum of 500 merks, he to make compensation thereof, took assignation to the sum of £.100 Scots due by the said Alexander Rattray, who to evite the compensation, assigned the said sum of 500 merks to Robert Murray his good-brother to his own behoof, at least without any onerous cause; whereupon Robert Murray did apprehend Assintilly with caption in a public market unexpectedly, and obtained from him a bond of corroboration of the first bond of 500 merks, bearing £.500 of penalty, and obliging him never to suspend. Assintilly being now charged upon the bond of corroboration, suspends on this reason, that the bond of corroboration did not import his homologation of the first bond, or any transaction thereanent, because it was an act necessary that he could not shun; and though it was no violence, or illegal force, yet it was a legal compulsion nowise inferring his approbation, and there was nothing gotten down upon the uncertainty of any plea that might be thereanent; so that if Assintilly had made payment, or to hinder the apprising of his lands, had offered moveable goods to be poinded, he might notwithstanding suspend, or reduce the principal bond, if he had just reason, and recover the money and goods as indebite solutum; so, much more may he in this case, having an unquestionable reason of compensation against the first bond upon his assignation, which, though it was not intimated, yet it is sufficient against Murray's creditors' assignee, though his assignation be intimated, because his assignation is to the behoof of the cedent, or the sum due for it is yet in his hand; and it is a fraudulent deed betwixt two good brethren, in prejudice of the debt assigned to Assintilly, done by collusion to exclude compensation, Rattray the cedent being at that time bankrupt or insolvent. It was answered, That the bond of corroboration was opponed, which, if it do not import a passing from compensation, it imports nothing, but puts the party in worse condition than before it was granted, for then he had his debtor in his hands by caption who now is liberated; and therefore it must necessarily exclude suspension, even though the principal bond might be reduced; and the bond of corroboration falls in consequence, if the reason was upon payment, or any intrinsic reason; but compensation, which is extrinsic, and may be made use of by way of exception or action, is certainly past from by the corroboration, especially it passes from all suspension, and obliges never to suspend, and even repetition of payment could not be obtained, unless protestation had been used, that it should be without prejudice to reduce or repeat; and if the compensation had been expressly passed from, there could have been no question, and the passing from suspension is a general comprehending it.
The Lords repelled the reason of compensation, in regard of the bond of corroboration, excluding suspension, albeit the compensation itself had been unquestionably relevant, and that the suspender had intimated his charge to his creditor before he had assigned the debt to this charger, or before the intimation thereof, but suspended the penalty of £.500 in the bond of corroboration.
Stair, v. 2. p. 92.
*** See a similar case, Thomson against Moubray, 2d December, 1675, No. 164. p. 12370. voce Proof.
