You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Garden of Troup v Dr Gregory. [1735] Mor 3390 (00 February 1735)
URL: http://www.bailii.org/scot/cases/ScotCS/1735/Mor0803390-040.html Cite as:
[1735] Mor 3390
Subject_1 DEBTOR AND CREDITOR. Subject_2 SECT. III.
A Creditor receiving payment from a Cautioner, must assign every separate security for the debt. By passing from his separate security he liberates the Cautioner.
Garden of Troup v. Dr Gregory
1735.
February. Case No. No 40.
A cautioner can reap no benefit from a separate security unless conveyed to him.
Click here to view a pdf copy of this documet : PDF Copy
A creditor of a tenant's having arrested corns belonging to his debtor in a third party's hand, a cautioner in the tack, who had been forced to pay the tackduty to the setter's creditors, appeared in the furthcoming, and pleaded preference upon the right of hypothec.—Answered, The right of hypothec was extinct by payment of the rent, the cautioner having demanded no assignation of the same from the setter.—Replied, What a party is bound to do, the law holds as done. Here the tack-duty was drawn out of the cautioner's hands by the setter's creditors; so that there was no opportunity to demand assignation from the master; the law supplies this, and the cautioner pleads upon his legal assignation.——The Lords preferred the arrester, in respect the cautioner had not an actual assignation from the setter to the tack-duty and hypothec. See Appendix.
