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Scottish Court of Session Decisions >>
Lord Yester v L. Innerweik. [1635] Mor 208 (25 March 1635)
URL: http://www.bailii.org/scot/cases/ScotCS/1635/Mor0100208-004.html Cite as:
[1635] Mor 208
Subject_1 ADJUDICATION and APPRISING. Subject_2 NATURE and EFFECT of this DILIGENCE.
Lord Yester v. L Innerweik.
Date: 25 March 1635 Case No. No 4.
An apprising being a legal assignation, needing no intimation, a discharge, by the debtor, of a bond comprised, is of no avail.
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In this cause, a reason of suspension was proponed, bearing, That the bond comprised was discharged by the creditor, to whom it was made, who granted that the same was satisfied to him, and discharged to the maker of that bond, which discharge was done after the comprising; and so whereby the compriser alleged that discharge ought not to be respected against him, and to his prejudice, who, after his denunciation and comprising completed thereupon, could be prejudged by no deed done by his debtor thereafter; yet the suspender, granter of the bond, alleged, That the discharge granted to him by the said creditor, to whom he was bound, quocunque tempore done, ought to produce liberation to him contra quoscunque, seeing the comprising was neither deduced against him, nor he ever warned thereto, nor yet was the same intimated to him; so that it was lawful to him to pay his creditor, and satisfy whatever he was bound in to his creditor, albeit the creditor had made another assignee thereto; yet satisfaction being given by the debtor to the cedent, before any legal intimation made by the assignee, the same would have freed him also against the assignee; so ought the like to be in this case, where he knew nothing of the comprising.——The Lords repelled this reason, and found, That the discharge of the bond, being given to the compriser's debtor, after the comprising; whereby the bond was assigned to the compriser judicially, the bond could not thereafter be validly discharged by the creditor, in prejudice of the compriser, and the judicial assignation: For the bond contained an obligation, made by the granter thereof, to infeft this debtor to the compriser, in lands therein comprised; so that, if the discharge was granted by real fulfilling of the same, viz. That the maker thereof had given real infeftment to his creditor, as the bond obliged him, which was not done, eo casu the infeftment would have been profitable to the compriser, and accresced to him; but that not being done, the discharge given, granting the bond to be satisfied, and no infeftment really given, but being discharged without implement, it was not found such a satisfaction, as thereby the compriser might be prejudged: And therefore it was found, That the compriser might still charge for giving to him the infeftment, obliged by the bond, notwithstanding of the discharge.
