James Ramsay, and Daniel Reid, his Assignee, v. David Spalding of Ashintilly
Date: 10 July 1713 Case No. No 197.
A creditor charged for the whole sum in a bond, after the debtor had accepted a bill for a part. The debtor, notwithstanding, found liable for the whole sum charged for.
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In the action at the instance of James Ramsay against Ashintilly, as attester of the sufficiency of Knockfoldich, cautioner in the suspension of a charge of horning given by the pursuer to Joseph Watson; the Lords, 19th July 1710, found, that the defender's attestation doth not oblige him for the sufficiency of the cautioner simply, but only for his sufficiency at the time of the attestation, No 85. p. 2162.
The defender now alleged; That James Ramsay the charger, having drawn a bill upon Watson the suspender, for L. 300 of the sum in the bond upon which he was charged, payable to Thomas Rattray, which the suspender accepted; this was an answering of so much of the sum in the bond, and putting it upon another footing and method of payment, or an innovation, equivalent as if the creditor in the bond had assigned a third party to so much of his debt, and the assignation had been formally intimated to the debtor. Yea, a debtor's accepting of a bill, payable to a third party, puts him under a stronger tie than an intimated assignation; because the former goes from hand to hand by blank indorsing, without being affected by arrestment or compensation for the indorser's debt. So that it being unwarrantable in Ramsay to charge for the full sum in the bond, after he was denuded, as aforesaid, of a part thereof by the bill, and the suspender not being in tuto to pay, he having accepted a bill in part, payable to another; the reason of suspension was just, and, consequently, the cautioner ought to go free.
Replied for the pursuer; The suspender not having paid the bill, he could plead no defalcation thereon, but only to be secured against paying the same, in case he should pay the while sum in the bond, which may be easily done; seeing Rattray, the creditor therein, acknowledges, by a declaration under his hand, that he was but a trustee for the behoof of Ramsay the drawer, and obligeth him to make the bill forthcoming to him, or his order, and hold count to him for what he should recover by virtue thereof.
Duplied for the defender; The suspender is never in tuto till the bill be retired to him, seeing the creditor therein might have indorsed it to any third party, who could not be prejudiced by the indorser's separate declaration.
The Lords repelled the defence founded on the accepted bill; the pursuer, upon payment, finding caution to warrant the defender against all further payment by virtue of that bill.
