Scottish Court of Session Decisions

Subject_1 CONDICTIO INDEBITI.

The E of Mar
v.
The E of Callander.

Date: 23 February 1681
Case No. No 4.

A creditor having assigned the whole sum, after getting payment of a part, and the assignee getting payment of the whole, it was found relevant against a condictio indebiti, pursued against him, that his assignation was in satisfaction of a debt due to him by the cedent, equivalent to the sum assigned; so that he got no more from the debtor what was due to him by the cedent.

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The Earl of Mar pursues the Earl of Callander to repeat a part of the sum of 6000 merks paid by him and his chamberlains to Callander, more than was due, in so far as he having been due to the Laird of Gloret by bond 6000 merks of principal, one of his Chamberlains had paid 1000 merks thereof to Gloret, and a subsequent chamberlain, not knowing of the former, paid to Callander, as assignee by Gloret, the whole sum, principal and annual, so that the 1000 merks was twice paid, and was indebite solutum to Callander, it having been paid before to his cedent. It was answered for Callander, That Gloret being debtor to him in the like sum, he had, for his satisfaction, assigned him his bond, so that he having received no more from Mar, than what was due to him by Gloret, he was not obliged to repeat what he had received, in solution of a just debt, for ‘repetitio nulla est ab eo, qui suum recepit, tametst ab alio quam vero debitore solutum est; L. 44. ff. de condictione indebiti; and L. 2, Cod eodem, soluti ex delegations repetitio nulla est contra delegatum, sed contra delegantem, licet sit ex errore solutum,’ so that Callander's assignation from Gloret to Mar's bond, in satisfaction of a debt due by Gloret, is a delegation of Mar, Gloret's debtor, in place of Gloret himself, and therefore there can be no repetition of what was paid, by Mar through error against Callander, though it may justly be against Gloret; seeing Callander has received nothing but the payment of his true debt; which is according to our ordinary custom, that if any make payment of another man's debt, upon that debtor's precept, he can never repeat it, upon pretence that it was indebite solutum, and that he paid by error, when he was not due; and an assignation being but a procuratory in rem suam is in the like ease. It was answered, That as the Earl of Mar might have excluded Callander before he got payment, as to this 1000 merks paid to his cedent before his assignation, so having paid what was not due, he may justly repeat it, as it was found in the case of Sir James Ramsay against Robertson, No 3. p. 2924. where the Lords ‘decerned Robertson to repeat what he, as executor-creditor, had recovered from Ramsay, upon finding of a discharge of the debt;’ and here the payment was not made by the Earl or by his warrant, but by the error of his chamberlains. It was replied, That what was paid by Ramsay to Robertson was not voluntary, but by a transaction upon a depending process; but voluntary payment, of what was due to a creditor, though the payer was not debtor, can never be repeated, whether it were paid by the Earl, or by his chamberlains, or any other.

The Lords found Callander obliged to repeat, if he had acquired the assignation, for payment of a sum whereby he was in the same case as his cedent, and was not a crditor as to what was paid before his assignation, but found it relevant, ‘That his assignation was in satisfaction of a debt due to him by Gloret before the assignation, equivalent to the sum assigned;’ so that he got no more from Mar and his chamberlains, but what was to him by Gloret.

Fol. Dic. v. 1. p. 187. Stair, v. 2. p. 866.