Scottish Court of Session Decisions

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

Dalkeith and His Lady,
v.
George Swintoun, Writer

Date: 12 January 1675

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Dalkeith and his Lady being charged upon a bond of borrowed money granted by her to William Caldwell, and assigned to the said George, there was a suspension raised, upon this reason:—That the assignation did bear, that the money was gotten for the price of so much coal of Wollmett, which the said William had intromitted with as factor, by Andrew Ker of Moristoune, who was tutor to the children of Wollmett, who had a tack of the said coal, which was burdened with twelve loads of coal weekly, to the Lady; which not being delivered, the price thereof would compense the sums contained in the bond; and as the compensation would meet the cedent, so ought it the assignee.

It was answered, That the compensation being founded upon a tack, wherein there was only an obligement to deliver coal, which were not liquidated by any decreet, the same could be no gronnd of compensation; which is only allowed where a debtor and creditor are hinc inde bound de liquido in liquidum.

It was replied, That the suspender had an action depending against Caldwell and Moristoune's son, who was made liable for his father's debt, to whose behoof this assignation was taken; which was referred to the charger's oath, and the liquidation of the coal to Moristoune's.

The Lords did supersede to find the letters orderly proceeded upon the bond, until the charger and Moristoune had declared and deponed; That thereafter, the price of the coal being liquidated, the compensation should be allowed pro tanto.

Page 449.