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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomas Somervell v The Earl of Carnwath. [1669] 1 Brn 582 (6 June 1669) URL: http://www.bailii.org/scot/cases/ScotCS/1669/Brn010582-1476.html |
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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.
Date: Thomas Somervell
v.
The Earl of Carnwath
6 June 1669 Click here to view a pdf copy of this documet : PDF Copy
The Earl of Carnwath being debtor to the said Thomas Somervell in the sum of 2400 merks; and, for his further security, having gotten an assignation to some bonds, he did give a back-ticket to be countable, and to allow the same in the first end of any sums due to him; and, as he informed, did thereafter count and deliver up all the bonds; and did thereafter lend him more monies, and took assignation to two other bonds granted by the Earl: whereupon having charged, he did suspend upon the foresaid back-ticket.
It being answered, That the back-ticket did instruct that the Earl was then debtor, by bond or otherwise, prior to the ticket; whereas the sums charged
for were due by bonds posterior, or the charger had right from George Fullartoun, after the date of the back-ticket: It was replied for the Earl, That albeit the assignation made by Fullartoun was posterior, yet the Earl's bond was prior, and was to the behoof of the charger; the Earl having only trusted Somervell, who did take off the furnishing from any he pleased, (wrhich was the cause of the bond,) without the Earl's knowledge, who did never count with Fullartoun, who could only look upon Somervell as his debtor: And therefore that the charger ought to instruct, otherwise than by the back-ticket, that the Earl was debtor by other bonds than this granted to Fullartoun.
The Lords ordained the cedents, whose bonds were prior to the back-ticket, to be examined upon oath, if their bonds were taken to the behoof of Somervell, seeing he was soon thereafter assigned thereto; and that the same were granted for March accounts, to the merchants who furnished and delivered the same to Somervell, who is the Earl's tailor.
Page 48.
The electronic version of the text was provided by the Scottish Council of Law Reporting
