Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Vans and Crawfurd v. William Kennedy of Daljarroch
Date: 10 February 1708
Click here to view a pdf copy of this documet : PDF Copy
David Ferguson, in Air, having a stock of 1400 merks in the African company, and he being debtor by bond to Sir John Ferguson, wherein another Ferguson and one Macjarrow of Bar are bound conjunctly; William Kennedy of Daljarroch pays Sir John, and gets an assignation to the bond, and thereon arrests the money in the Commissioners of the Equivalent's hands; and likewise gets a voluntary assignation from the said David Ferguson to his share, and intimates the same duly. David being likewise debtor to Vans and Crawfurd, they raise horning on their bond, and arrest in the Commissioners of the Equivalent's hands; but, when the multiplepoinding comes to be discussed, Daljarroch is preferred, both on his prior arrestment and on his first intimated assignation; therefore Vans and Crawfurd insisted, That, seeing he got payment of his whole debt, he might assign them against the other two co-principals, that they may not totally lose their debt.
Answered,—I can never be obliged to assign, but only to discharge; because any payment I have got is out of the principal debtor's effects; especially seeing one of them is turned insolvent and broken.
Replied,—The Lords have demurred to ordain a creditor to assign, where he instructed a prejudice, such as, that he had other debts unpaid; but whenever his whole interest is satisfied and extinct by payment, they overruled that invidious refusal of assigning: for, in all competitions, where a creditor has more securities than one, and, by affecting part of the subject, is preferred; because he thereby debars the other creditors, therefore it is but just that he assign what farther security he has, that thereby the other postponed creditors may operate their own payment the best way they can: and that one of them is failed, is our prejudice and loss; but we will take our hazard.
The Lords ordained Daljarroch to assign quoad the other two parts, with warrandice from his own fact and deed allenarly; for it appeared to be collusion in him to gratify the common debtor.
