Competition betwixt the Creditors of William Walwood
Date: 15 June 1705 Case No. No 2.
An adjud cation was objected to on account of pluris potitio, because a person by order of the creditor, had subscribed for a share in a company, by which the debt was diminished. The mandate was not found sufficiently clear to have that effect.
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Henry Walwood, merchant in Edinburgh, having dispoened his whole estate to William, his eldest son, with the burden of provisions to Henry, his second son, and Helen, his daughter; and Henry haring assigned his portion to Robert Walwood, the father's brother, he transferred it under trust to John Liberton, merchant in Edinburgh, who adjudged William's estate.
In the ranking of William Walwood's Creditors, it was alleged for George Home, one of the town-clerks of Edinburgh, that the adjudication at the instance of John Liberton is null; at least ought to be restricted, as being led for more than was due, in so far as Henry Walwood was debtor to his brother in L. 250 Sterling subscribed for him in the African Company, which should have been deducted off the adjudication, at least must be allowed to restrict the same; for clearing of which ground of debt, three letters from Henry to his brother William are produced, in one whereof he desires William to subscribe for him two or three hundred pounds Sterling in the African Company: In another he writes, That William had informed him he had subscribed for L. 500 Sterling, and desires him to place L. 250 to his account: And in a third letter, after the Company broke, he desired William to do for his share of the stock, as he was to do for his own. From which commission to sign, acquiescence in what was done, and mandate to negotiate his proportion of the stock, Henry appears to be debtor to William in the half of the subscription money.
Answered, The not allowing compensation, though Henry Walwood had been debtor to his brother for the L. 250 is no nullity in the adjudication; since a ground of compensation needs not to be noticed, unless it be proponed, and is not receivable after decreet. 2do, The desire of Henry's letters was never performed, nor complied with by William; since he subscribed the L. 500 for himself before receiving his brother's letter; and did not state the L. 250 to his account, nor yet made or obliged himself to make any transfer of the share to Henry, while the Company's circumstances were entire; and now when res non est integra with the Company, neither William, if he were alive, nor his creditors, can transfer.
The Lords repelled the allegeance of extinction and compensation founded on William Walwood's subscription in the books of the African Company; and found the said allegeance not instructed by the writs produced.
