Scottish Court of Session Decisions

Subject_1 ASSIGNATION.
Subject_2 Nature and Effect of an Assignation.

Monteith
v.
E Calender and Gloret.

Date: 7 December 1666
Case No. No 20.

An assignation taken bank in the assignee's name, is liable to every exception that could affect the cedent.

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The Laird of Parkley Hamilton as principal, and Hamilton of Kinglassie, and certain others, his friends as cautioners, being debtors in two bonds: Kinglassie, in consideration that Parkley had disponed to him a right of wadset which he had to the lands of Touch, by a contract, did oblige himself to satisfy and pay the sums contained in the saids bonds; and to procure discharges from the creditors to Parkley and his cautioners: And neverteless having paid the said sums, he did not take discharges, but assignations to the saids bonds, which he filled up in the name of Sir ungo Stirling of Gloret, his own creditor; who did thereupon arrest a sum due by the Earl of Callender to Parkley: Thereafter Captain Monteith having right to Callender's debt by assignation from Parkley, obtained a decreet against the Earl; which being suspended upon double poinding, it was alleged for Gloret, That he ought to be preferred, in respect of his assignation and arrestment: Whereunto it was answered, That Kinglassie being obliged (as said is) to pay the said sums, had paid them; and whereas he should have taken discharges, he had taken an assignation blank in the assignee's name, and had filled up Gloret's name in the same; so that assignation being procured by him, and lying by him, and he being master of it, it was in effect his; and he was in the same case, as if the assignation had been granted to himself, and he had made a translation to Gloret; in which the exception upon the obligemerit foresaid to relieve Parkley, as it would have been competent against Kinglassie, would have secluded also Gloret, his assignee, by translation. In this process Gloret's oath being taken; and he having declared, that the assignation was procured by Kinglassie, and by him delivered to Gloret, and that he paid nothing to the cedent, but that the assignation was given to him by Kinglassie, that he might be satisfied of certain dums due to him by Kinglassie, which he was to discharge if he recovered payment, by virtue of the said assignation:

The Lords upon a debate in prœsentia, preferred Monteith, and found the exception, which was competent against Kinglassie, if the assignation had been to him, and transferred by him to Gloret, is competent against Gloret; and that he is in the same case, as if he had right by translation from Kinglassie. This is most just, and founded upon law and equity, seeing otherwise fraud cannot be obviate; and, in law, plus valet quod agitur, quam quod simulate concipitur aut exprimitur: And fictione brevis manus, though it appear that it is but one act, viz. The assignation made to Gloret; yet, in construction of law, there are two acts, viz. The granting the assignation blank to Kinglassie, which, in the interim before it was delivered to Gloret, was his evident; and an assignation immediately made to himself, and thereafter the filling up Gloret's name, and the delivery of the assignation to him; which upon the matter is a translation.

For Monteith, Spottiswood. For Gloret, Lockhart, Cunninghame, Maxwell, and Weir. Dirleton, No 54. p. 22. *** The same case is thus reported by Stair:

In a competition between Monteith and the Laird of Gloret, it was alleged for Monteith, That he ought to be preferred to the sums in question, because Gloret's assignation was obtained by Hamilton of Kinglassie, and was lying by him blank in the assignee's name, and by him filled up with Gloret's name, and delivered to him; so that Kinglassie being his true author, any discharge granted by him while the bonds were blank, and in his power, was relevant against Gloret, his assignee; ita est Kinglassie, while or before the bonds were in his power, did equivalent to a discharge, viz. obliged himself to pay this sum, and relieve the principal debtor thereof; and, instead of the discharge, he took this blank assignation, filled up by him in Gloret's name. 2dly, The charge, though in Gloret's name, is for Kinglassie's behoof; and if he were charging, his obligement to pay the debt would exclude him: And therefore must exclude the charger.—It was answered, That Gloret was in bona fide to take this assignation, knowing nothing of the backbond; and that an obligement to satisfy the debt was not equivalent to a discharge: Neither is the having of the assignation, though blank, equivalent to an assignation, unless the name of Kinglassie had been filled up and intimate.

The Lords having taken Gloret's oath before answer, wherein he acknowledged that he got this assignation from Kinglassie, and paid no money for it; and that it was on these terms, Kinglassie being owing him a greater sum, he was to allow what he got by this assignation, in part thereof, but deponed he knew not if it Was blank when Kinglassie had it or not:

The Lords found, That the assignation being accepted by Gloret, in terms aforesaid, that it was but a corroborative security; and so found the assignation for Kinglassie's behoof; and found the back-bond relevant to exclude him, and therefore preferred Monteith.

Stair, v. 1. p. 403.