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A real creditor upon a bankrupt estate, who was also cautioner for the factor, having conveyed his debt to a creditor of his own for his security and payment; the question arose, If the assignee could draw this, debt out of the bankrupt estate or price thereof, without being chargeable for the balance due by the factor, who was now become bankrupt, as well, as his cautioner the cedent. In this case there could be no place for compensation; for, esto the balance due by the factor had been liquid, the cautioner was creditor upon the estate, but had no claim against the co-creditors, neither was he debtor to them for the factor's intromissions, but to the Court of Session; neither could payment or extinction be pleaded, because a factor has no power to apply his intromissions towards payment of his own debt, and far less has his cautioner power to apply the factor's intromissions; the Lords therefore found, That the onerous assignee was not liable to account for the factor's intromissions, and repelled the objection pleaded against him upon that head.——In a former case, the Lords had sustained the objection against the onerous assignee, 3d January 1730, Oliphant against Morisons.—See Appendix.
