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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomas Cultie and - Hunter v Earl of Airly. [1676] 2 Brn 197 (3 February 1676) URL: http://www.bailii.org/scot/cases/ScotCS/1676/Brn020197-0453.html Cite as: [1676] 2 Brn 197 |
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[1676] 2 Brn 197
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.
Date: Thomas Cultie and - Hunter
v.
Earl of Airly
3 February 1676 Click here to view a pdf copy of this documet : PDF Copy
Thomas Cultie and ——— Hunter pursue the Earl of Airly, upon a bond of corroboration granted by him, corroborating two bonds granted by his father after this Earl was infeft in the estate; for which two bonds he could not be overtaken but by this bond of corroboration only.
It was alleged for the Earl, That the pursuers have no title or right to this bond of corroboration, but only to the two bonds corroborated; the assignation whereof doth not so much as contain that ordinary clause,—“With all that hath followed, or may follow thereupon,”—albeit it be granted after the bond of corroboration; and, therefore, it must be understood that the cedent did, of design, forbear to assign the bond of corroboration, that the defender might not be distressed thereupon.
It was answered, That the assignation to the principal bond and debt carrieth with it, without any express clause, all accessory securities; quia accessorium sequitur suum principale, unless there had been an exception or reservation; which is the ordinary way; otherwise, the bond of corroboration would, without consideration, be evacuated: for it could not belong to the cedent, seeing he is denuded of the sum; and it is now pretended that it could not belong to the assignee; but here the matter is very clear, that the cedent designed not to reserve the bond of corroboration; because it is produced by the assignee, which presumes the delivery thereof to him: And that clause,—“With all that hath followed,” &c. is ex stilo; as is the clause,—“With power to pursue, compone, and discharge:” yet all of them are implied in the very assignation to the debt, unless they be reserved.
The Lords sustained process upon the assignation; and found it reached the bond of corroboration, as being delivered to the pursuer.
Vol. II, Page 409.
The electronic version of the text was provided by the Scottish Council of Law Reporting
