A new bond granted by a debtor of the rebel to an assignee, before declarator, secures against the donatar.
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Sir Robert Stuart in Ireland being debtor to James Sanderson in a considerable sum, the said James did assign the same to James Ker, and Robert Brown; and Sir George Maxwell, as friend to Sir Robert, having compted with the assignees, there was found L. 300 Sterling resting, for which Sir George gave bond to the assignees, bearing this condition, that they should deliver up Sir Robert's first bond, with a discharge thereof to Sir George, who being examined upon oath, when and how the first bonds were delivered to him, deponed that they were delivered to him in anno 1670, and that he desired no discharge, in respect that he got up the bonds unregistrated,; Sanderson being at the horn in anno 1653, David Rodger obtained a gift of his escheat and general declarator thereupon, and assigned the same to William Veitch, who took a second gift upon the same horning in anno 1674; whereupon there arose a competition betwixt Veitch the donatar, and the Executors of Ker the assignee, which of them had best right to the sum of Sir George Maxwell's; and after a full debate in præsentia, the Lords, upon the 10th day of December 1673, found that creditors obtaining satisfaction of their debts contracted before rebellion, and satisfied before the declarator, were thereby secure, and never obliged to repeat the same to any donatar, whether the satisfaction were obtained by payment made by the rebel, by poinding of his goods, or disposition thereof in satisfaction, or by decreets for making furthcoming of his sums, or goods, or precepts, or assignations granted by the rebel, and thereupon payment made by the rebel's debtors; which being of new again debated, and the donatar having alleged, that albeit payment obtained could secure the creditor, yet he must be preferred, because here the creditor hath not gotten payment, but a new bond, which bearing expressly to be the remainder of a bond due to the rebel, it is rather a corroboration than either payment or innovation, and so is in the same case, as if Sir Robert Stuart upon sight of the assignation had given to Ker a new bond for the remainder of what he was due to Sanderson, though he had taken up the old bond; yet seeing the new bond shews that it was for the same cause, it is not equivalent to payment, much more when the old bond is neither discharged nor cancelled, but only delivered to Sir George Maxwell; and the Lords by their former interlocutor, found that the donatar is preferable to the assignee, unless the assignee had recovered payment, as in this case he hath not, but the sum is yet extant. It was answered, That neither the interlocutor, nor the ground thereof is founded solely upon payment, but upon satisfaction, which may be by payment, innovation, delegation or compensation; for when an assignee craves satisfaction from his cedent's debtor, he is not obliged to go through all the registers to try, whether his cedent was at the horn; but he may lawfully and securely take satisfaction of his debt, either by the actual delivery of money, which he cannot be hindered to lend to the same party, and take a new bond thereupon, or by taking from him a new security, whereby the creditor being changed, the assignee becoming debtor in place of the cedent; it is equivalent to payment; but here the old bonds are retired and extinct, and in this new bond there is an entire change, for instead of Stuart the debtor, now Maxwell is debtor, and instead of Sanderson who was creditor, now Ker becomes creditor, which is fully equivalent to actual payment; and albeit this satisfaction be after the declarator upon Rodger's gift, yet that gift could only extend to what the rebel had then acquired; but Sir Robert Stuart's bond was granted long after, and so cannot be carried by the first gift; and being satisfied to the rebel's assignee before the second gift or declarator, the same doth only belong to the assignee and his executors.
The Lords adhered to their former interlocutor, and having considered the oath of Sir George Maxwell, they found, that before Veitch's gift or declarator, the debt due by Sanderson was satisfied and extinct, by this new bond granted by Sir George Maxwell to Ker as Sanderson's assignee; and therefore preferred the Executors of Ker the assignee to the donatar as to the sum due by Sir George Maxwell. See No 159. p. 1073. and No 91. p. 2874.
