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.
James Smith v. Semple of Fulwood
Date: 4 July 1710
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Smith and Semple. Mr James Home, merchant in Edinburgh, being debtor to Mr Alexander Drummond, writer to the signet, in £578 by bond; and one Ninian Brown, in Caldstream, being also a considerable creditor to him, and designing to adjudge; Mr Drummond, for saving expenses, assigns his debt to Brown, that it might be included in one adjudication. But, that it might not be in Brown's power to dispose of his sum without his consent, he expressly clogs his assignation with this quality, that it should not be leisome to the said Ninian Brown to dispone or transfer his sum to any person whatsoever, without his consent; and how soon the decreet of adjudication was obtained, Brown obliged himself to deliver back to Mr Drummond his bond, with a disposition and retrocession to his share of it; and should not be affected with Brown's debts. Notwithstanding this restrictive quality, yet Brown assigned his adjudication. totally, even as to Drummond's part, to Captain Baillie, and he to Mannerhall; who distressing Home's heirs, and obtaining decreet against them; for relieving them from a present distress, Semple of Fullwood grants a bond of corroboration of Home's prior bonds contained in Brown's adjudication, and consequently of Drummond's debt amongst the rest. And Fullwood, being charged on his bond, made payment to Mannerhall; but afterwards being convened by James Smith, Bailie of Tranent, as having right, by progress, to Drummond's debt, he alleged, He had made bona fide payment to Mannerhall, who had a decreet against Home's heirs; and thereupon he became adpromissor for them by a corroborative security, and knew nothing of the restrictive qualities in Drummond's assignation to Brown; neither was he bound to inquire into the matter any farther than to see a clear decreet against Home's heirs, making not the least mention of any such restriction in Drummond's right to Brown. And, esto Drummond had taken a back-bond from Brown, declaring the assignation was but in trust, and obliging to denude, that would never have put Fullwood in mala fide to pay to Mannerhall, in whose person he saw a simple absolute right without the least quality ingrossed; and he was not bound to speir further back: like one granting a corroboration of a former right may warrantably pay without dipping into the qualities of the original right, which may be conveyed through several hands.
Answered,—Though you Fulwood was not bound in the first debt, but only came in as accessory to them, yet you was obliged, before you made payment, to have examined the transmission, and seen the several steps of the progress; which, if you had called for, you would have found Brown's right from Drummond expressly clogged and burdened with two restrictive qualities: 1mo, That the assignation was in trust, and ad particularem effectum only, to deduce a diligence of adjudication thereon, and denude. And the second was, not to assign Drummond's debt to any without his own consent; and you was bound to have seen them, and so the payment can never be bona fide: and for this was cited a decision in Newton, 10th March 1683, Drummond against Riddoch. And the case of a separate back-bond differs toto ccelo from this in hand; for there singular successors and strangers were not bound to know any such transaction, but here the very right is affected with it; and it is incorporated in grwmio of the assignation; and you cannot misken it, nor pretend ignorance. It is true, as payment is most favourable, though labouring under defects and mistakes, and double payment odious; yet here he ought to have inquired into the qualities of his author's rights, which having neglected, he must be still liable.
The Lords found it was not bona fide payment. But, it not being clear if all the sums in the adjudication were paid by Fullwood, or only a part, the Lords thought, in the last case, that indefinite payment of a part would be primo loco ascribed to Brown's part; so there would be yet room for paying Drummond's debt pro tanto, in so far as Fullwood had yet in his hands. Fullwood likewise reclaimed against a former decreet preferring Smith, on thir two grounds: 1mo, That it was extracted disconform to the minutes. 2do, That Advocates were made compearing for him, whom he never employed.
As to the first, the Lords recommended to my Lord Grange, reporter, to try the matter, and punish the extractor, if guilty. And, as to the second, the disclaiming compearance either by the party or advocates, so as to loose decreets in foro, was of the highest importance, and most dangerous to the security of the lieges; and therefore was not decided at this time. See the 11th December 1678, Grant against Mackenzie.
