Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION I.

Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. VIII.

Of Second Gratuitous Alienations of the same Subject.

Blair of Bagillo
v.
Blair of Denhead

Date: 3 February 1671
Case No. No 63.

A cedent found not entitled, after granting assignation, to discharge the debt gratuitously, though before intimation.

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Blair of Bagillo having granted bond to Blair of Denhead, he did assign the same to Guthrie of Collistoun. Bagillo raised suspension against Collistoun as assignee, in anno 1632, and now Collistoun insists in a transferring of the old suspension and decreet suspended against Bagillo's heirs, to the effect the cautioner in the suspension may be reached. It was alleged, no transference; because Bagillo's father obtained a general discharge from Denhead, before any intimation upon Collistoun's assignation; and albeit the discharge be posterior to the assignation produced, it must liberate the debtor, who was not obliged to know the assignee before intimation. It was answered, that the debtor might pay to the cedent bona fide, before intimation; yet a discharge obtained from the cedent, after assignation, would not liberate against the assignee, though it were before intimation; and this general discharge bears no onerous cause. 2dly, This general discharge being only of all processes and debts betwixt Bagillo and Denhead, at that time, it cannot extend to this sum assigned by Denhead long before, and who could not know whether the assignee had intimate or not; and cannot be thought contrary the warrandice of his own assignation, to have discharged the sum assigned, especially seeing there was an assignation long before, which was lost, and the intimation thereof yet remains; and this second assignation bears to have been made in respect of the loss of the former, and yet it is also before this general discharge.

The Lords found the general discharge of the cedent could not take away this sum, formerly assigned to him, though not intimate, unless it were proven that payment or satisfaction was truly made for this sum.

Fol. Dic. v. 1. p. 70. Stair, v. 1. p. 714.