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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robert Burnet, W. S. v M'Lellan. [1685] 2 Brn 77 (00 March 1685)
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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.
Robert Burnet, W S.
v.
M'Lellan
1685 .March .Click here to view a pdf copy of this documet : PDF Copy
The Lords found, That, to infer compensation inter easdem personas, it is not enough that the compenser had an assignation in his person before the other party's cedent was denuded by assignation, unless he could say that it was intimated before intimation of the other's assignation; for the cedent is not fully denuded without intimation.
It was debated in this cause, That infeftment having followed upon a bond of corroboration, compensation could not be founded on the debt corroborated, as not being ejusdem qualitatis with the other moveable sum craved to be compensed. Answered, The compensation is founded on the principal bond, whereon no infeftment was passed; and the principal debtor did not subscribe the bond of corroboration, so as the moveable quality of the first bond was not altered thereby. The Lords were clear to have sustained the sums compensable, notwithstanding the infeftment following upon such a corroboration; but the cause was determined upon the first point.
Page 63, No. 263.
The electronic version of the text was provided by the Scottish Council of Law Reporting