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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hay v Tweedie. [1702] Mor 3356 (14 February 1702)
URL: http://www.bailii.org/scot/cases/ScotCS/1702/Mor0803356-013.html
Cite as: [1702] Mor 3356

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[1702] Mor 3356      

Subject_1 DEBTOR AND CREDITOR.
Subject_2 SECT. I.

Relief among Co-debtors, and whether the Creditor, upon payment, is bound to assign in order to operate relief.

Hay
v.
Tweedie

Date: 14 February 1702
Case No. No 13.

A personal creditor adjudging, tho' he is bound to accept of payment from another personal creditor, cannot be forced to grant an assignation, but a discharge only.


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William Hay of Drummelzier being a creditor to French of Kingledores, and adjudging his lands, compearance is made for Robert Tweedie, another creditor, who contends, You cannot adjudge, because I am willing immediately to pay your principal and annualrent, and true disbursed expences, et nihil tibi deest, you giving me an assignation to your right.—Answered, I am content, but I will give you nothing but a discharge, no law obliging me to assign; and you can be in no better case than the debtor who may redeem and pay, but can crave no more but a discharge and extinction of the debt; and at this rate there might be a circle, for another personal creditor may redeem from you, as you offer to do from me; and so you have no interest, unless you had affected the lands by adjudication, or some other legal right.—Replied, It seems too grasping and malicious to refuse payment; and has our law no remedy to compel in such cases? For why should you accumulate unnecessary expenses on the debtor, or co-creditors, by adjudging, and then claim your penalties and accumulations?——The Lords found a personal creditor, offering to pay, could not force him to give him an assignation; but declared, in the competition of the creditors, they would take this offer to consideration, how far it may then cut off accumulations now heaped on the debtor and co-creditors, and would count them as strictly as law would permit. It seems each of these parties had a design to purchase the lands.

Fol. Dic. v. 1. p. 221. Fountainhall, v. 2. p. 146.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1702/Mor0803356-013.html