Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
William Rutherford v. Mr John Grieve of Pinacle
Date: 28 June 1694
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Crocerig reported William Rutherford against Mr John Grieve of Pinacle: who, being debtor to Rutherford in 700 merks, he gives him an assignation to one Gray's bond for that sum; with this quality, that, in so far as he could not recover it, he should be liable to make it up himself. When Rutherford charges the Grays, they Suspend, upon partial payments, and produce discharges; which is intimated to Grieve, and he takes up the discharges, and keeps them several years; and, being now convened on the warrandice, he alleges they cannot recur against him, till they discuss Gray's suspension.
Answered,—You are in culpa et mora, seeing you gave not back the receipts.
Replied,—You never required them; and, if you had, I would have concurred with you, and instructed that they did not prove payment.
The Lords were clear, that such an assignee was bound, in the terms of the back-bond, to have insisted for the recovery of the debt assigned to him; but, in regard of the circumstances, that he had taken up the receipts, and kept them several years, without furnishing Rutherford with defences against them, therefore, in this case, they found the cedent, and not the assignee, was bound to discuss the debt: and ordained Rutherford to retrocess Pinacle to the right of Gray's debt: and found the letters orderly proceeded against Pinacle for the 700 merks.
