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DECIDED IN

THE SUPREME COURTS OF SCOTLAND,

AND IN THE

HOUSE OF LORDS ON APPEAL FROM SCOTLAND,

&c. &c.

HOUSE OF LORDS CASES FROM 25TH FEBRUARY 1839, TO 1311 FEBRUARY 1840.

COURT OF SESSION CASES, &c., FROM 12. NOVEMBER 1839, TO 12TH NOVEMBER 1840.

BY

(HOUSE OF LORDS, &c.)

W. H. DUNBAR, Esq., ADVOCATE ;

(FIRST DIVISION, &c.)

GEO. DING WALL FORDYCE, Esq., ADVOCATE;

(SECOND DIVISION, &c.)

JOHN DE MARIA AND JAMES DONALDSON, ESQRS., ADVOCATES.

BEING

A CONTINUATION OF THE SCOTTISH JURIST. .

VOL. XII.

EDINBURGH:

PRINTED BY M. ANDERSON & CO., LAW-PRINTERS,

MOUND PLACE.

1840,

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REPORTS OF CASES

DECIDED IN

THE COURT OF SESSION, &c.

25th February 1839.

HOUSE OF LORDS.-(W.H.D.) (Speeches taken from Mr Gurney's Short-hand Notes.) No. 1.-JAMES F. GORDON and OTHERS (David

Clyne's Trustees and Erecutors), Appellants, v.

GEORGE DUNNET and OTHERS, Respondents. Diligence-Arrestment-Assignation-A party holding an as

signation in security and relief of certain debts and obligations incurred to him by the cedent, found entitled (affirming the judgment of the Court of Session), notwithstanding an arrestment used in his hands by another of the cedent's creditors, to apply the funds recovered under the assignation in payment of sums advanced by him, the assignee, subsequent to the arrestment, but in virtue of obligations undertaken prior to the arrestment.

Kenneth Fraser owed the firm of M Beath and Dunnet (of which the respondent, Dunnet, is the surviving partner,) the amount of two bills, dated in December and September 1822, and both payable three months after date, for £47 and £23, 3s. respectively, with in.. terest from the terms of payment. Fraser was also under obligations of relief to M.Beath and Dunnet for two cautionary obligations undertaken by them. In security and relief of those debts and obligations, Fraser assigned, on 23d April 1823, a sum of £516. 8. 7, due by the late Colonel Williamson of Marlefield to the late Mr Cameron, minister of Halkirk, and conveyed by his (Cameron's) executrix, Miss Cameron, to Fraser. After this period, Fraser incurred some additional debt to M.Beath and Dunnet on the security of the assignation. This assignation was duly intimated to Trail, the trustee for Colonel Williamson's creditors, and Henderson, factor to the said trust. In April 1825, the late Mr Clyne, the appellants' author, brought an action against Fraser for payment of a business account of £420 Sterling, and upon the dependence used arrestments on the 10th, 11th, and 12th May 1825, in the hands of Dunnet, Trail, and Henderson, and having got decree in his action against Fraser on 22d June 1825, brought a forthcoming in April 1830 against the foresaid arrestees.

Dunnet, in his defences, admitted that he had recovered, under his assignation to Colonel Williamson's debt, the two following sums: £130. 18. 10. on 220 July 1824, and £65. 9. 5. on 1st January 1830, but denied that these sums were sufficient to extinguish Fraser's debt to him; and maintained that he was, besides, entitled to retain any balance arising under the assignation, after payment of his debt, in relief of his cautionary obligations for Fraser.

Trail and Henderson, in their defences, admitted the debt originally due by Colonel Williamson to Fraser, but maintained that, under Fraser's assignation to M.Beath and Dunnet, he (Fraser) had entirely divest

SCOTTISH JURIST.

ed himself of all claim against the arrestees (Trail and Henderson), and that they having paid away to Fraser's assignees, as they were bound to do, ought not to have been called in this action.

On 9th March 1833, the Lord Ordinary pronounced the following interlocutor:

“The Lord Ordinary having heard parties' procurators, and considered the closed record, state of accounts, and objections and answers thereto, Finds that in the accounting between George Dunnet as arrestee, and David Clyne, the former is entitled to take credit, in the first place, for the amount of the debts and obligations in security and relief of which the assig. nation to him by Fraser, the common debtor, was granted, and all the expenses relating to these debts and obligations : 2dly, For all sums paid to or for behoof of, and for all furnishings made to the common debtor prior to Mr Clyne's arrestment in 1825; and, 3dly, For all sums which, though paid for behoof of Fraser, the common debtor, after the date of the said arrestment, were paid in virtue of obligations contracted prior to said date; but finds that Mr Dunnet, the arrestee, is not entitled to credit for any advances or furnishings made to the common debtor subsequent to the date of the said arrestment, and not falling within the preceding finding : Finds that Mr Clyne is, in virtue of his arrestment in the bands of Mr Dunnet, entitled to any balance which, on the application of the principles above laid down, may be found to remain in the hands of the said arrestee, but only on the condition of relieving Mr Dunnet of the bond of caution granted by him in the loosing of arrestment on the dependence of the action of William Sutherland against Fraser, the common debtor, being one of the obligations still outstanding, in relief of which the assignation was granted: Finds farther, that Mr Clyne is, on the performance of the above-mentioned condition to Mr Dunnet, entitled, in virtue of his arrestment in the hands of the other defenders, Colonel Williamson's trustees, to draw any balance which may remain due by the said trustees to Fraser, the common debtor, in so far as necessary for payment of the debt due by the common debtor to the arrester. Lastly, In respect that Messrs Clyne and Dunnet differ in regard to the amount of the advances or furnishings actually made to or for beboof of tbe common debtor-Remits the case to Mr Donald Lindsay, accountant, to examine the accounts, and to report upon the balance which may be due by Mr Dunnet, agreeably to the preceding findings.”

This interlocutor was adhered to by the Inner. House on 27th June 1833; and, thereafter, the Lord Ordinary remitted to Mr Lindsay, accountant, to examine the accounts, and report what balance might be due to Mr Dunnet, agreeably to the interlocutor of 9th March 1833. Mr Lindsay reported, that a sum of £23. 4. 6. was due by Mr Dunnet at 1st January 1830, but subject to his claim for relief of his cautionary obligation. After advising objections to this report, and the oath of Fraser, the common debtor, in reference to Dunnet's claims, the Lord Ordinary, on 1st February 1837, pronounced the following interlocutor:

“ The Lord Ordinary having heard parties' procurators, and considered the deposition of Kenneth Fraser, the common debtor-Finds it proved by the said oath that the advances of

VOL. XII.-No. I.

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