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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Child v Fergusson's Trustees [1835] CA 13_768 (15 May 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0768.html Cite as: [1835] CA 13_768 |
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Page: 768↓
Subject_Partnership—Cautioner.—
A obtained a cash-credit from a bank on a joint and several bond by himself and others, at a time when the credit was exhausted he entered into partnership with B; shortly afterwards the debt due the bank under the credit was paid up by the company on an assignation to the bond, and the company having been dissolved, and A having died largely indebted to it, Held that B, as surviving partner and under the assignation to the bond, was entitled to recover from a co-obligant therein the full amount.
The late James Lyon, S.S.C., in 1813 obtained from the Bank of Scotland a cash-credit to the extent of £500 on a bond subscribed by himself and three others, jointly and severally, in the ordinary terms. In 1814, the bank having required additional security, the late Thomas Fergusson granted a bond of corroboration, binding himself, jointly and severally, and renouncing the benefit of discussion. Fergusson died in 1821, leaving a trust-deed of settlement, whereby he appointed the defenders his trustees. In November 1825, Lyon entered into a contract of copartnership with the pursuer, Child, W.S.; and business was thereafter carried on by them, under the firm of Lyon and Child. At this period the credit with the Bank of Scotland was exhausted, the amount due being £525, 8s. 1d. With the exception of Lyon, the obligants in the bond were either dead or bankrupt, and in 1826, the bank becoming urgent for payment, the company of Lyon and Child, in October of that year, paid up the balance due under the bond, amounting to £526, 7s. 10d., on an obligation by the bank to grant an assignation thereto, and to Fergusson's bond of corroboration, when required. In the beginning of 1827 the partnership of Lyon and Child was dissolved, Lyon being largely indebted to the company. A few months after this Lyon died, and in 1833, Child, having taken from the bank the assignation to the original bond, and to Fergusson's bond of corroboration, raised an action, as surviving partner of Lyon and Child and for behoof of the concern, against the son and heir of Lyon (who had entered cum beneficio inveutarii), and also against the trustees of Fergusson.
For the latter it was mainly pleaded in defence—
1. That the pursuer was barred by mora from now insisting against
2. That the debt to the bank having been paid by a company, of which Lyon, the principal obligant, who as such was liable in relief to the others, was a partner, the defenders could not be called on for payment, so far at least as regarded the share or interest of Lyon in the advance made by the company.
The Lord Ordinary repelled the defences, and decerned in terms of the libel, with expenses, adding the subjoined note. *
Fergusson's trustees reclaimed.
Lord Justice-Clerk entertained doubts of the interlocutor, but the other judges concurring with the Lord Ordinary,
The Court adhered.
Solicitors: James Stuart, S.S.C.— Smith and Kinnear, W.S.—Agents.
_________________ Footnote _________________
* “It seems to be unnecessary in this case to explain minutely the grounds of judgment. The defences are evidently groundless.
“Lyon got a cash-credit from the bank, in which he had cautioners, who are all bankrupt. But the deceased Mr Fergusson granted a bond of corroboration, and he died solvent.
“When the credit was entirely drawn out, and. a further debt contracted, Lyon entered into partnership with Child. The bank having insisted for payment, the firm of Lyon and Child (evidently distinct as persona juris from Lyon individually) paid up the debt, taking an obligation from the bank to assign the bond to the company when required. Then Lyon died, largely indebted to the company. The pursuer, as in right of the company, and by virtue of the assignation obtained from the bank, insists for payment against the representatives of the granter of the bond of corroboration.
“Unless it can be maintained that the bank would have been barred from demanding payment if the debt had not been paid to them by Lyon and Child, it is not imaginable how the pursuer should be barred from suing in virtue of the assignation from them. The firm of Lynn and Child were no more bound to pay that debt than Mr Child individually was bound to do so. They paid it as a third party, and became onerous assignees; and the idea suggested in the debate, that the firm could not have sued Lyon, their partner, for a debt due to them by him as an individual, is equally contrary to all principle and daily practice.”
