Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Sir George Gordon of Haddow
v.
The Laird of Cockburne

1672. February.

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About the beginning of this month was the debate betwixt Sir George Gordon of Haddow and the Laird of Cockburne, wherein the case was as follows; Bailie Mercer being debtor to Haddow in the sum of 3000 merks, and Cockburne being bound for Mercer in sundry considerable cautionaries, he obtains for his relief an assignation to a bond of 4000 merks, amongst many other bonds due by the Laird of Cragievar to Bailie Mercer. Haddow hearing the Bailie was breaking, and had disposed on the most part of his estate, and particularly on that bond, he causes draw an assignation of Bailie Mercer's bond of 3000 merks to him in favours of Cragievar, Mercer's debtor, and delivers the same to Mr. David Thoirs, as treater and communer for and in name and behalf of Cragievar, who accordingly accepts thereof; and this assignation made to Craigievar is intimated to Mercer, the debtor in that bond, I think a day before Cockburne could get his assignation intimated to Cragievar. This being the matter of fact; when Cockburne pursues for his sum, Cragievar alleges he must have compensation, in so far as he was become creditor to Mercer, by Sir George Gordon's assignation to him, before Cockburne's intimation; and so being both debtor and creditor vicissim, confusione tollitur obligatio.

To this it was answered,—That they could not be heard to plead compensation on that head unless they would say that Cragievar knew of this assignation made to him by Haddow, and accepted of the same before Cockburne intimated his assignation, seeing it was only a northland, done of collusion and set purpose, to elude Cockburne's assignation; et non amo nimium diligentes; it was done without any onerous cause on Cragievar's part, and Haddow laid so small weight on this conveyance, that at the same time he, in his own name, and for payment of his debt, caused arrest the sum due by Cragievar, which by the course of nature was inconsistent and incompatible with his former assignation, whereby he was denuded of the right to that sum.

Replied,—That they needed not say that Cragievar knew of that assignation or accepted thereof before Cockburne's intimation, because of the law, Si procurator rem mihi emerit ex mandato meo, eique sit tradita meo nomine, dominium, mihi, id est, proprietas acquiritur etiam ignoranti; l. 13 D. de acquir. rerum dominio; l. 34 p. 1, D. de acquir. vet amitt. possess, par. 5Instit. per quas personas cuique acquiritur; so that all the law required was, that he give a commission for doing such a business or acquiring such a thing; which the mandatary accordingly acting, mandanti ignoranti res illa acquiritur. Vide Dumnum, in commentario ad regulam3 Juris Canonici; Perezium ad Tit. C. de donation. quæ sub modo et condit. numero 8vo.

The Lords referente Domino Craigie, ordained Cragievar the alleged mandator, and Mr. David Thoirs the alleged mandatarius, to be examined before answer, whether Cragievar gave any commission to Mr. David Thoirs to treat with Haddow for that bond of Mercer's, and if Mr. Thoirs accepted the assignation in Cragievar's name, and for him intimated it to Bailie Mercer. Which if they grant, then I imagine the Lords will sustain the assignation made to Cragievar, though he was ignorant of it, because it was accepted by Mr. David Thoirs, who had a commission from him to that effect.

Advocates' MS. No. 320, folio 128.