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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pittarro v The Earl of Northesk. [1675] 1 Brn 549 (5 January 1675) URL: http://www.bailii.org/scot/cases/ScotCS/1675/Brn010549-1414.html Cite as: [1675] 1 Brn 549 |
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[1675] 1 Brn 549
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN NISBET OF DIRLETON.
Date: Pittarro
v.
The Earl of Northesk
5 January 1675 Click here to view a pdf copy of this documet : PDF Copy
The Earl of Northesk, having taken an assignation to a bond, granted by the deceased Laird of Craig and Earl of Dundee to Margaret Carnagie and her children for 1000 merks; and having comprised thereupon Craig's estate; he did, after the comprising, give a bond to the said Margaret Carnagie and her children, that, in case he should recover payment, he should make payment to them of the foresaid sum.
Sir David Carnegie of Pittarro, being debtor to the said Earl in the sum of 2000 merks, suspended upon that reason;—That the said Margaret and her children had assigned to him the said back-bond, granted by Northesk; and, that the said Earl had disponed the right of the said apprising to the Lord Hattoun; and therefore became liable to pay the said sum to the suspender's cedent; and the suspender may, and does compense upon the said bond, pro tanto.
It was answered by the charger; That the comprising did neither belong to the suspender's cedent, nor was to their behoof; the said bond, granted by the Laird of Craig, being assigned ab initio, without any back-bond; and the comprising
being deduced before Northesk granted the said bond: And, by the said back-bond, he was obliged only to pay the said sum in case he should get payment; and he was so far from getting payment of the said sum, thaL having comprised, not only upon the said bond granted to Margaret Carnagie, but for other debts, exceeding far the said debt due to her; yet got payment of neither. It was replied by the suspender; That he was not concerned to dispute whether he got payment or not; but the charger having disponed the comprising as to the said sum, without the consent of the said —— Carnagie and her children; and without the burden of the said back-bond, it was equivalent as if he had got payment: it being all one upon the matter, as to the interest of —— Carnagie, whether Northesk had got payment of the said sum, or had disponed the comprising in so far as concerns the same.
The Lords, in respect of the conception of the bond granted by Northesk, found, that either he should procure a retrocession of the said bond, and comprising thereupon pro tanto; or that he should pay the damage and interest sustained by the suspender's cedent, through Northesk's granting of the right of the said bond and comprising to Hattoun: And, in that case, that the damage and interest should be presently liquidated; and, being liquidated, should be a ground of compensation.
Glendoich, Reporter. Monro, Clerk. Page 97.
The electronic version of the text was provided by the Scottish Council of Law Reporting
