Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION III.

Donatio non præsumitur.
Subject_3 SECT. VIII.

Rights taken, in name of Third Parties not delivered.

Sir James Cockburn
v.
The Laird of Craigivar

Date: 1 February 1672
Case No. No 170.

An assignation taken and intimated in a third party's name, without his knowledge, and where the assignation remained with the granter, was found not a conveyance to the third party, because he was not creditor to the cedent; and therefore his name was presumed to be borrowed only for the cedent's behoof.

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Sir James Cockburn, as assignee by Bailie Mercer, having charged the Laird of craigivar to make payment of a sum due by bond, he suspends on this reason, that he did compence the sum charged for with a sum due by Bailie Mercer, the cedent, to Sir George Gordon of Haddo, and by Sir George assigned to Craigivar, and the assignation intimated to Bailie Mercer before the intimation of Cockburn's assignation. It was answered, That the reason of compensation ought to be repelled, because albeit there be produced an assignation in the name of Craigivar, and intimation thereon before Cockburn's intimation, neither was the intimation made by Craigivar's warrant, nor did Craigivar accept the same; but all that was done was a contrivance betwixt Sir George Gordon and Mr David Thoirs, who only got delivery of the assignation, and made the intimation without warrant, and without knowlege of Craigivar, to whom no right of assignation could be acquired in that way, but was dependent till he accepted the same, especially seeing that both Craigivar's assignation and intimation were posterior to the assignation made to Cockburn. It was answered for Craigivar; 1mo, That albeit Mr David Thoirs had without his knowledge or warrant taken right and assignation to Haddo's bond, and intimated the same, yet this being taken by him as negotiorum gestor, the right is thereby acquired to Craigivar for whom he acted; and the delivery to Mr David Thoirs, as negotiorum gestor, is as sufficient as if it had been delivered to Craigivar immediately; 2do, Craigivar may justly deny, that the delivery was made to Mr David Thoirs without warrant, for he had special warrant from Craigivar to transact with Haddo for the same debt before Cockburn's assignation; and, accordingly, he did transact and receive the assignation, and made intimation; and, it is an undoubted ground in our law, that ignorantibus jura acquiruntur, neither is there any dependence upon the acceptance, but ipso facto that the right is complete, and delivered for a party's use, either to a mandatar, or to a negotiator, right is acquired to that party instanter, albeit ex post facto, he may reject the same. It was replied, That this was but a fraudulent contrivance to prefer one creditor to another, whereby he anticipates the other creditor whose, assignation was prior; and Craigivar had no interest, seeing he behoved to pay the sum, either to Cockburn or Haddo. It was duplied, That suppose a creditor should so endeavour his own preference by preventing the intimation of another creditor's assignation, yet this were not dolus malus but allowable, as in the case of creditors using all diligence to prefer themselves; and if Haddo had gotten a second assignation, though he had known of the first, yet knowing it was not perfected by, intimation, he might by diligence prevent it, and first intimate, and so be preferred; so in this case he might grant assignation to Craigivar, and deliver and intimate the same to a third party to his behoof; and though thereby he put himself upon Craigivar's mercy, and trust whether he would pay him or not; yet as to Craigivar, the right was unquestionaly acquired.

The Lords found this answer made to the reason of compensation relevant to be proved by Craigivar and Mr David Thoirs their oaths, viz. that Craigivar gaye no warrant to Mr David Thoirs to transact with Haddo for acquiring this assignation before Cockburn's right; or if he did, that Mr David Thoirs did not get delivery of Haddo's assignation before Cockburn's intimation.

Fal. Dic. v. 2. p. 148. Stair, v. 2. p. 56. *** Gosford reports this case:

Cockburn, as assignee made by Bailie Mercer to a bond of Craigivar's of 4000 merks, having charged thereupon, Craigivar did suspend on this reason, That Before the charger had intimated his assignation, he had obtained from the Laird of Haddo an assignation to a bond of Bailie Mercer's for the sum of 3000 merks, which he had likewise intimated before the charger had made any intimation to him of his assignation, It was answered, That any assignation made by Haddo to the suspender was without his knowledge, as likewise the intimation thereof, and was a contrivance betwixt Haddo and Mr David Thoirs, who was his advocate, of purpose to prefer Haddo to Cockburn, Bailie Mercer being lapsus bonis, so that Craigivar knowing nothing thereof, it did not liberate him from being debtor to Bailie Mercer, and so he might make a valid assignation to the charger. It was replied, That in law, quilibet potest acquirere alteri etiam ignoranti vel absenti; and so the assignation being delivered to Mr David Thoirs, in name of Craigivar, and intimated, was a valid right, whereof he might now make use.

The Lords did repel the reason of suspension, and found, that unless Mr David Thoirs had a special mandate whereby he might oblige Craigivar to accept of the assignation; and that, unless he had known and accepted thereof, by giving warrant to intimate the same, he could not thereafter make use thereof to the prejudice of Cockburn, who had done diligence by intimation before his knowledge, seeing that were to put it in his power who is debtor, to prefer one creditor to another, notwithstanding of the first diligence; and that, until he had accepted of Haddo's assignation, and become debtor to him, he was never liberated from the common debtor. Thereafter, it was offered to be proved by Craigivar's oath, and Mr David Thoirs', that he had given a special mandate to procure an assignation from Haddo, and to intimate the same before Cockburn did intimate his right, which was sufficient to extinguish Craigivar's debt to Bailie Mercer, and to make him debtor to Haddo; which the Lords did sustain, albeit it was alleged, that it was only probable scripto, that Craigivar did agree thereto, seeing that were to prove Craigivar's allegeance by his own oath, which was hard.

Gosford, MS. No 455. p. 236.