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James M'Kenzie having assigned a bond of 1000 merks to M'Kenzie of Reidcastle to the behoof of Alexander Clunies, with absolute warrandice, and being charged upon the clause of warrandice, he suspends on this reason, that the clause of absolute warrandice did only import that the debt was due, and not that the debtor was solvendo; whereas by the special charge it is alleged, that the debtor is insolvent. The charger answered, That the clause of warrandice doth necessarily import that the cedent had not done, or should do no deed hurtful to the assignation; and albeit such clauses of warrandice were now found not to import the solvency of the debtor, that doth not quadrate with this case, where it is clear by the assignation, that the bond assigned was not delivered, but the cedent was obliged to deliver the same at such a day, wherein he failed, and before the delivery the debtor, who was solvent the time of assignation, became insolvent by apprisings, and the charger not having the assignation, could not apprise debito tempore. It was answered, That the assignation bears per expressum, that the bond was registrated, and bears the particular date and court, so that albeit the suspender failed to deliver it, he cannot be liable either for a contravention, or for damage through the not delivery, because it was no necessary consequence thereof, seeing the charger might have extracted the bond himself, and apprised, and that clause for delivery of the bond hath a liqudated penalty of £200, which ought also to be modified to such expenses as the charger would have been at in extracting the bond.
The Lords found, that seeing in the very assignation the date of the registration was expressed, that the not delivery did not import a contravention of the warrandice, and modified the penalty, for not delivery, to £200 Scots.
