BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Hamilton v Hamilton. [1629] Mor 2649 (27 June 1629)
URL: http://www.bailii.org/scot/cases/ScotCS/1629/Mor0702649-112.html Cite as:
[1629] Mor 2649
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
Hamilton v. Hamilton
Date: 27 June 1629 Case No. No 112.
Found, that an assignee was not affected, by obligations, to which his cedent was bound in a separate contract, though regarding the subject assigned.
Click here to view a pdf copy of this documet : PDF Copy
Alison Hamilton sells the lands of Bothwellhaugh, to umquhile David Hamilton of Monckton-mains, who obliged her to infeft him therein. Two or three years thereafter, David dispones the said lands again to her in wadset, redeemable to her upon a sum. After David's decease, his heir having transferred the first contract in him, he thereafter makes another assignee thereto, who charges Alison to infeft him, conform to the contract; and she suspending, that she ought not to give him infeftment, except that he grant back again to her the infeftment of the wadset redeemable, conform to the second contract; and which, she alleged, the assignee should do and fulfil, as his cedent, seeing the cedent having denuded himself of his right to the assignee, and he being otherwise non solvendo, the assignee therefore ought to fulfil.——The Lords found this reason ought not to meet the assignee, and ordained the suspender to charge the cedent, seeing these were two different contracts, whereof each one ought to have their own execution; whereas, if these conditions had been contained in the body of one writ, the assignee also ought to have fulfilled the cedent's part. But here it was presumed, by great circumstances, that the last wadset was redeemed, and the sums satisfied; therefore the Lords were the more moved to reject the reason against the assignee. See Mutual Contract.
