Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 YULE VACANCY.
Captain John Brown v. William Newberrie
Date: 25 January 1677
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Captain John Brown, in Leith, as assignee constituted by his brother, pursues William Newberrie, as he, who, for payment of L.413 Scots, had got an assiguation to debts of a triple value for his payment, to count and reckon for the super-plus, before the Bailies of Leith.
The defence was, that the disposition was absolute, and he was not liable to count, &c.; which see in the informations. The Bailies, with advice of their assessors, having fully considered the defender's eiked defences, and replies made thereto, with the registrate bond granted by the pursuer's cedent to the defender, containing an assignation relative to the bond joined in one writ, and that the said assignation is granted on the special causes and considerations therein mentioned, viz. In regard and on the account the granter was then instantly to pass furth of the realm to foreign parts, and that it was reason the defender should be secured anent his better payment of the sums contained in the bond; and that the assignation was granted but prejudice of the personal obligement: therefore they repelled the eiked defence, and found the defender liable in the superplus of the sums assigned and intromitted with by him, more nor satisfies the sums contained in the bond granted to him; and ordain the defender to discharge the said bond, and to retrocess the pursuer to what of the cedent's money is not yet uplifted; and admit the pursuer's claim to his probation; and that notwithstanding of these general words in the narrative of the assignation, bearing for other weighty causes and good considerations, which are only a superfluity and redundancy of the common style of writing, unless the defender will condescend on other onerous causes beside the sum in the bond; and that by the particular causes of the assignation above mentioned, and the generality of the assignation to all the granter's means and estate, sufficiently clears that the true intention and design of both parties, was allenarly for securing the defender for pay. ment of the sums contained in his bond; and the express consideration of the granter's going out of the country, manifests and demonstrates that what superplus should be intromitted with by the defender, was only as a factor and administrator for the pursuer's cedent during his absence, he being first paid.
Of this decreet, Newberrie having given in a bill of suspension before Craigie, and, upon the amand of a dollar, having obtained the Lords' answer, they repelled his reasons, and adhered to the Bailies' interlocutor, as most just.
