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Scottish Court of Session Decisions >>
Patrick Cunningham v George Scot of Gibleston. [1679] 3 Brn 296 (10 July 1679)
URL: http://www.bailii.org/scot/cases/ScotCS/1679/Brn030296-0369.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Patrick Cunningham v. George Scot of Gibleston
Date: 10 July 1679
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Mr Patrick Cunningham, writer, as having right from his wife, who was assignee, by Francis Hamilton, her former husband, pursues Mr George Scot of Gibleston, steward-depute of Orkney, for the sum of 500 merks, contained in a bond granted by him to the said Francis.
Alleged,—1mo, The bond is posterior to the assignation by Francis to his wife, and so cannot carry the right of this sum; 2do, It is omnium bonorum, and so fraudulent; 3tio, It was not intimated in the cedent's life; 4to, Francis, the cedent, was his debtor for a parcel of whalebone, prior to the assignation, and so he must have compensation.
Replied,—He assigns to all debts that shall be due to him at the time of his decease. The 2d is jus tertii to the debtor. As to the 3d, it shall be confirmed before extract. The compensation mentioned in the 4th is neither liquidated nor verified, and so is no way receivable, hoc loco, against a liquid bond; as the Lords found, Durie, 1st December 1626, Balbegno; 6th December 1626, Camp-bel; and many times since.
This being reported, the Lords repelled Mr George's compensation, founded on the intromission with the whalebone, by Francis Hamilton, cedent, unless he would prove it scripto, or by Mr Patrick's oath of knowledge; and ordained the sum to be confirmed; and sustained the dispositio omnium bonorum tarn præsen-tium quam futurorum, to extend etiam ad bona acquirenda, and as a sufficient active title.
