Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Hisleside
v.
Littlegil, &c

Date: 12 February 1685

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One Mitchel having received, upon his granting a back-bond, an assignation from Littlegil, to a bond of 4000 merks, due by Hamilton of Binnie as principal, and Hisleside as cautioner, and having pursued the cautioner, the defender proponed compensation and payment to the cedent in general; thereafter Littlegil assigned Mitchel's back-bond to Duke Hamilton and his creditors; and, before the term for proving the defence of payment and compensation, Hisleside, the defender, obtained a decreet of male appretiata against Littlegil; at the advising whereof, it was alleged for the assignees to the back-bond, 1. That the process being now for their behoof, the decreet against Littlegil could not meet them; seeing, when their assignation was intimated, the debt of male appretiata was not liquid by a sentence, and so cannot be a ground of compensing the debt due to them by the defender. 2. The defence of payment was but made in the general, without any special application to the debt of male appretiata. Answered for the defender, Littlegil, or Mitchel his trustee, could not prejudge the defender by any assignation, after the matter was litigious by litiscontestation upon the defence; and the term allowed against Mitchel to prove the defence of payment, consisting in facto, must be effectual against the assignees to his back-bond. 2. The exception of payment and compensation, in general terms, was sufficient, the pursuer not having craved the defender to be special as to the ground it was founded on: besides, the defender would lose his debt, if it was not sustained against the assignees, now that Littlegil is insolvent. The Lords sustained the answer, and found that the compensation meets the assignees, as [it] did Mitchel or Littlegil; and, there being other grounds of compensation not liquid, the Lords allowed the defender a fortnight to liquidate these, superseding extracting in the meantime. Here the defender's case was favourable, to be free of cautionary paid by the sale of Binnie, the principal debtor's lands; where Hugh St Clare, who, by virtue of a factory, sold the estate, and paid the debt, took assignation to the bonds, and transferred them to Littlegil.

Page 62, No. 162.