Clifford and Sons v. Hugh Mosman — Memorial, 20 Feb 1772

Untitled F e bruary 20. 1772. M E M O R I A L F O R Messrs F ORAAG IN and SGTW Merchants in Am- sterdam, and their Attorneys, A G A I N S T 2 017 a nd � � Writer in Edinburgh, one o f the arrest in g Credi- tors o f � � � � � � 2 n11 and � n� Merchants in Edinburgh, Jr iT � � � and � n� merchants in Leith, sent a ship, called the Peggy, Thomas Hogg Master, to Riga for dales; and having applied to William Hogg and Son for a credit upon Dantzick to Captain Hogg, they wrote to Archibald M ‘ Lean o f Dantzick to furnish the Captain with L. 250 S terling, and to remit them his bill in guilders upon the said John Syme and Son; and, at the same time, defied Mr M‘Lean to draw upon Messrs Clifford and Sons merchants in Amsterdam for his reimbursement. William Hogg and Son accordingly, o f this date, wrote the fol­ lowing letter to the Messrs Cliffords: “ You’ ll please honour Mr Archibald M‘Lean of Dantzick draught on you, to extent o f L. 250 Sterling for our accompt, in reimburse o f money Cap­ tain Thomas Hogg o f the Peggy may need at Dantzick; for both which, please take your reimbursement on Messrs Roger Hogg and Kinloch London for our accompt.” Mr Mr M'Lean having advanced the money to Captain Hogg, did, of this date, draw upon the Messrs Cliffords at 70 days, and, o f the same date, wrote to Messrs Cliffords as follows: " I have now your esteemed favour of the first: instant, &c. I expect Captain Thomas Hogg to clear this afternoon; and the exchange being favourable, I have valued on you this day at 70 days, viz. Flm. Bwto order of Em. Thomas Hay value of him; ditto to order o f Gudm Bergud; ditto to order of Joh. Jac. Stolterfoth. Flm. Bw. in all.” ^ f 1 • *; *■ » —? \ Which you’ll please honour, and place to accompt of Messrs Hogg and Son of Edinburgh. I shall acquaint them the need­ ful next post, when I forward them the papers; mean time I am, & c. ” Mr M‘Lean, when he advanced the money to Captain Hogg, took his draught upon the Messrs Symes in the following terms: Two months and ten days after date, pay this, my first of ex­ change, unto Messrs William Hogg and Son or order in Edin­ burgh, si x thousand two hundred and seven guilders five groseh, Dantzick currency, value received o f Mr Archibald M‘Lean as, per advice from (signed) � 7n �d 2 n11 � This draught Mr M‘Lean forwarded to William Hogg and Son; and as they failed about this time, the bill was not accepted by the Messrs Symes. Mr M ‘Lean, who had advanced the money to Captain Hogg (and which money was the value for which the bill was drawn upon the Messrs Symes, payable to Messrs Hogg and Son) being sensible that it would be highly unjust that the Messrs Svmes should pay the money to Messrs Hogg and Son, whereby it would be carried off by their creditors, and the Messrs Cliffords, who had truly advanced the money, left in the lurch, gave an order to Messrs Mansfield and company of Edinburgh, to get up from Hogg and Son the foresaid bill, drawn on the Messrs Symes by Mr M'Lean, but which they had not accepted. The Messrs Cliffords were advised that they had a claim against Mr Syme and Son for payment o f Mr M 'Lean’s draught on them, seeing the same was applied by Captain Hogg for purchasin g the cargo of the sloop Peggy for the Messrs Symes behoof, and there- fore L. 1 3 0 L. 180 5 0 92 0 0 L. 422 5 0 fore they instituted an action before the court o f Admiralty, against the Messrs Symes and William Hogg and Son, concluding, that William Hogg and Son should he decerned to deliver up to the Messrs Cliffords, Archibald M ‘Lean’s draught upon John Syme and Son, and that the Messrs Symes should be decerned to make pay­ ment of the contents thereof to the Messrs Cliffords, who had truly advanced the money; and the luminous like ways contains a conclusion, that at any rate William Hogg and Son should he found liable. Arrestments were used in the hands of the Messrs Symes, at the instance o f some of the creditors of William Hogg and Son: Whereupon the Messrs Symes brought an action of multiple-poind­ ing before the Court of Session. And this action having been insisted in before the Lord Barjarg Ordinary, the Messrs Symes, the raisers of the multiple-poinding, craved to be allowed retention o f the balance of a promissory note due to them by Wil­ liam Hogg and Son, after deduction o f two partial payments o f L. 100 each. And an interest having also been produced for William Scott writer in Edinburgh, the Lord Ordinary, of this date, pronounced the following interlocutor: “ Ranks and pre­ fers the said John Syme and Son, the raisers o f the multiple­ poinding, upon the sums in their own hands, primo loco, for pay­ ment to them of the said sum of L. 300 Sterling of principal, and interest thereof, at the rate o f 4 cent. per annum, from and since the 8th day of March 1769, deducing therefrom the sum o f L. 100 Sterling paid upon the 2d May 1769, and the like sum of L. 100 Sterling paid upon the 19th of the said month, all conform to the promissory note above mentioned produced for them; and ranks and prefers the said William Scott, s ecund0 loco, and next after the said John Syme and Son, for payment pro tanto o f the foresaid sum of L. 344 Sterling o f principal, and interest thereof from and since the 18th day o f February 1769; and of the foresaid other s um of L. 20 Ster­ ling, and interest thereof, at the rate o f 4 per cent, per annum, from and since the 18th day of July 1769; and decerns in the said preference, and against the raisers of the multiple-poinding for payment accordingly,” Hugh Mossman writer in Edinburgh, posterior to the com­ mencement of the above competition, and indeed posterior to the date date of the foresaid interlocutor, being creditor to William Hogg and Son, thought proper, of this date, to use an arrestment in the hands of the Messrs Symes; and accordingly, he produced his in- terest in the foresaid multiple-poinding, though not called as a defender, and along therewith a representation; and craved to be preferred secundo loco, and next to the raisers of the multiple-poind­ ing. And the Messrs Cliffords having procured an advocation o f the foresaid process, which depended at their instance before the Admiral, and having produced the fame as their interest in the multiple-poinding, in which they were called as defenders; and having insisted to be preferred for the balance due by the Messrs Symes, after deduction of the sum due to them by William Hogg and Sont upon the foresaid promissory note; the Lord Or­ dinary, of this date, pronounced the following interlocutor: “ Ad­ vocates the cause from the Admiral, and conjoins the same with the process of multiple-poinding at the instance of John Syme and Son: Finds the said John Syme and Son intitled to retain out of the first end o f the sums due by them to William Hogg and Son the foresaid principal sum of L. 300 Sterling, and interest: thereof, at the rate o f 4 per cent, per annum, from and since the 8th day of March 1769, contained in the said promissory note produced, deducing therefrom the sum o f L. 100 Sterling, paid upon the 2d May 1769; and the like sum of L. 100 Sterling paid upon the 19th of said month, as marked on the back of said note; and further finds them intitled to re­ tain in like manner the sum of L. 3: 14: 5 S terling, as the ex- pences of raising and inbringing said process of multiple-poind- ing, conform to the accompts thereof produced: Prefers the said Messrs Cliffords and Sons, and their attornies, to the balance of the sums restin g by the said John Syme and Son, to the said William Hogg and Son, after retention as said is; and decerns in the preference against the said John Syme and Son, for pay­ ment accordingly; as also decerns against the said William Hogg and Son for payment to the said Messrs Clifford and Sons and their attorney, o f the foresaid sum of 6207 guilders 5 grosch Dantzick currency, and interest thereof, from and since the 22d October 1769, when they advanced the same, during the not- payment; deducing always therefrom such sum as the said Mess. Clifford and Sons, or their attornies, shall receive from John Syme Syme and Son, in virtue o f the above mentioned preference.” And to this interlocutor his Lordship adhered, upon advisin g a re- presentation with answers. But Mr Mosman having preferred a second representation, the Lord Ordinary, upon advising the same with answers, of this date, pronounced the following interlocutor. " The Lord Ordinary ha­ ving considered the foregoing representation, with answers for Messrs Clifford and Sons; and having again considered the whole cause, recalls the former interlocutor, in so far as it prefers the respondents to the balance of the sums resting by Messrs Syme and Son; and prefers the representer Hugh Mosman, to that balance, after retention to them of the surns mentioned in said interlocutor; and decerns in the preference against Syme and Son for payment accordingly; and that more time may not be lost in debating this preference, recommends to the parties to apply to the whole Lords for an alteration, if they shall be so advised, without again applying to the Ordinary.” And upon advisin g a short representation for the Messrs Cliffords, the Lord Ordinary, of this date, superseded extract till the 20th o f Novem­ ber next. The Messrs Cliffords reclaimed; and the petition having been ordained to be answered, and answers having been put in accord­ ing ly you r Lordships, of this date, pronounced the following in­ terlocutor: " Before advisin g the bill and answers, the Lords or­ dain both parties to give in memorials upon this cause to the boxes upon the 13th inst. with certification, that they will not be afterwards received without an amand of forty shillings Ster­ ling.” And your Lordships thereafter prorogate the time for giving in the memorials to the 22d inst. This memorial is humbly offered on behalf o f the Messrs C lif­ fords. The Messrs Symes, who owe the money, are in the field; and they do not dispute, that they are liable in so far as they have not accounted to Messrs Hogg and Son for the money advanced on their account, and they do not object to the payment thereof to the Messrs Cliffords; and the question before your Lordships is, Whether the Messrs Cliffords, who truly advanced the money for Messrs Symes behoof, shall be in titled to draw the sum in medio; or, if it shall be carried off by the creditors o f William Hogg and Son. son, notwithstanding they never advanced a penny on the Messrs Syme’s account. The memorialists cannot but consider it as a clear case, that their p lea is at least clearly founded in eijuity. T hey will be pardon— ed tosayhit would be contrary to every principle o f equity or ju stice, that while the Messrs Symes hold the money in their hands, the memorialists, by whom the price of the cargo was truly paid, should he denied access to it, and that the creditors o f William Hogg should be allowed to carry it off, when at the same time it is confessed, that he never advanced a penny on the Messrs Syme’s account, and by his notour bankruptcy is rendered totally incapa­ ble to advance it; and, i f the plea maintained by Mr Mosman as an ac t ing creditor of William Hogg and Son, is repugnant to the principles of equity and ju stic e, and, it the memorialists claim is clearly founded in equity, it will be very strange, if law is not to be found for supporting the memorialist’s preference. Mr M‘Lean advances the money to Captain Hogg for behoof o f the Messrs Symes; and Mr M'Lean is reimbursed thereof by the memorialists; and this, in their humble apprehension, must clear­ ly create an obligation upon the Messrs Symes to reimburse the memorialists of the money. So far indeed it is true, that as the memorialist! advanced the money ex mandato of William Hogg and Son, that the memoria- lists had likewise their additional security for their reimbursement; and if the Messrs Symes should have paid any money to Hogg and Son, before they were interpelled by the memorialists, they perhaps would be intitled to plead, that they had advanced their money bona fide to Hogg and Son; and that therefore the memorialists be­ hoved to have recourse against them for their reimbursement. But, before such payment was made, the memorialists can discover no reason why it should not be competent for them to have re­ course to the Messrs Symes, and recover their payment directly from them, without at all insisting against Hogg and Son, in virtue o f the order which the memorialist received from them. It certainly was competent for the memorialists, rebus integris, to discharge William Hogg and Son of the obligation they were under in consequence of their order; and, in that case, the me- morialists reimbursements would have lain against the Messrs Symes and them only, Hogg and Son would have been free of any claim at at the instance o f the memorialists; and, on the other hand, Hogg and Son would have had no claim against the Messrs Symes, as their only claim against the Messrs Symes did arise from the obligation which William Hogg and Son lay under to the memorialists on their account. From the premisses it seems evident to follow, that Mr Mosman, in this case, can draw nothing in competition with the memoria- lists. Mr Mosman, as an arresting creditor of Hogg and Son, can be in no better situation than Hogg and Son would have been, were they here ins isting in their own right. A creditor ar- rester can never carry more, or have a stronger claim than what was in their debtor. And therefore, let the case be supposed, that Hogg and Son were now the memorialist s competitor, although Hogg and Son had a claim against the Messrs Symes for impressing money into their hands, for the purpose of fulfilling the obligation that they lay under to the memorialists, in consequence of the foresaid or­ der; yet if the memorialists should have acquit Hogg and Son o f that obligation, their claim would be at an end: They never could insist against the Messrs Symes, when they had neither advanced money on their account, nor were bound to advance any thing for them. And by the same rule, when all parties are in the field, and when the memorialists are satisfied with the Messrs Symes own secu- rity, and are willing to depend on them for their payment, with­ out having any concern with William Hogg and Son, it is quite in­ conceivable to the memorialists upon what around William Hogg and son can have any claim against the Messrs Symes. There is surely no reason why they should be intitled to insi st that the Messrs Symes should put the money into their hands, in order that they may pay it over to the memorialists, when the memo­ rialists themselves, (to reimburse whom the money was to be paid) opposed their touching the money, and insist, that the same should be paid over directly to themselves; and as Hogg and Son, in a competition with the memorialists, could with no pro­ priety claim the money, so their creditors claiming in their right, in virtue of their arrestments, can he in no better situation; there would be neither equity nor justice, in allowing Hogg and Son or their creditors to carry of this money, when they truly have ad­ vanced nothing on the Messrs Symes account. It It was said that the question does not fall to be viewed In the same light as i f it was with Hogg and Son themselves: For that, in many cases, the debtor is in a different situation from those claiming in their right; and the case was put o f a competition betwixt an arresting creditor and an assignee, whose right was prior to the arrestm ent but the assignation not intimated. ‘ It was said that the arreste r would be clearly preferable to the assig- nee, and yet if the question was with the common debtor, the as- signee would be clearly preferable to him; and from thence, this conclusion was drawn, that the right o f the arreste r and o f the common debtor cannot be put upon the same footing; and it was said that a nexus having been created by the arrestment, there was thereby a jus quaesitm ohe arrester, which could not after­ wards be defeated by any concert betwixt the Messrs Symes and the memorialists. T hese observations may be very ingenious, and at first view car­ ry a plausibility along with them: But the memorialist s will be pardoned to say, that they do not apply to this case, nor tend in the least to support the plea of the memorialist s competitor, nor impinge upon the general proposi t i on which the memorialists do here beg leave to hold forth as clearly founded in the principles of law, viz. that the arresting creditor cannot by his arrestment carry a better right than what was in h is debtor, nor a question with third parties be in a better situation than the common debtor himself would have been. 'I'he above example of an arresting creditor being in a different si t uation from the common debtor, in a competition with an as- signee whose assignation was not intimate prior to the arrestment, is, with submission, nothing to the purpose. There is no doubt that persons claiming under rights flowing from the lame common author, competing among themselves, will be in a different situ- ation, than if any of them were competing with the author him- self. Where the competition is amongst parties claiming under one common author, he will fall to be preferred who has the first completed light; but there can be no room for competition be- twixt the person who is possessed of a right and the person who gave him that right. It is impossible that the cedent can object that his assignation is not intimated; but the cedent must be obli­ ged to yield to the assignee, unless he could set aside the assigna- tion don upon some relevant ground in law; but that has no manner- of connection with the present case. The competition here is not under rights flowing from the same common author, whether le­ gal or voluntary; but it is a competition betwixt a third party not claiming through William Hogg and Son, and a person claiming in the right o f William Hogg and Son; and when that is the case, i f the right of William Hogg and Son would not have been pre­ ferable to the claim of the memorialists, it is perfectly clear, that Mr Mosman, who in this case must claim in the right of William Hogg and Son, cannot be preferable. It is a proposition which is not only clearly founded in law, but in plain common sense and reason, That no man claiming in the right o f another, whe­ ther by a voluntary deed of transmission, or as having affected the right by legal diligence, can carry more than what was in his author. William Hogg could never give more to his assignee than what he had himself; and, for the same reason, no creditor of William Hogg’s can, by his diligence, carry a stronger or a better right than William Hogg had himself; and so, whatever would be a good objection to a third party not claiming in the right of William Hogg against William Hogg himself, if he was insisting, must likeways be a good objection against any creditor- arrester of William Hogg’s. T his is a proposition so clearly founded in reason, that it needs no illustration. Nemo potest plus juris in alium transferr e quam ipse habet; and therefore the memorialists will beg leave to hold it as a clear proposition, that the present question falls to be viewed in the precise same light as if Hogg and Son were here their competitor; and if that were the case, what a strange plea would it be for Hogg and Son to maintain, when the money was lying on the table before them, that they would not allow the memorialists to touch the money, but that they themselves would take it, and give it to whom they pleased, notwithstanding the only ground upon which William Hogg and Son could claim the money was, that they might give it away to the memorialists! Such a competition would seem to be similar to a competition betwixt a factor and his cons t itu en t. A factor, in virtue o f his factory has no doubt the jus exigendi in him, and, in virtue thereof, could compel the debtors to pay; but supposing, that, while the la nds were in medio, the condiment himself should ap­ pear pear, and oppose the factor's touching the money, finding it unsafe to trust him: is it posib le, that the factor could say, that he behoved first to touch the money, because he was accountable to his constituent for it? The answer would be good, that the constituent did not chuse to trust the factor with it, and that the obligation on the factor to ac­ count, was sufficiently implemented by the constituent himself recei­ ving the money. The memorialists here would be furnished with the same answer to Hogg and Son. The only pretence which Hogg and Son could have for claiming the money, was in order to enable them to implement the obligation they lay under to the memorialists; and there­ fore they could, with great propriety, tell William Hogg and Son, that they did not chuse to have the money conveyed to them by the hands of a person that was insolvent, but that they chused to draw the money themselves; and Hogg and Son could have no interest to oppose it, because, by the memorialists drawing the money from the Mess. Symes, the obligation which Hogg and Son lay under to the memori­ alists, in consequence of the foresaid order, was sufficiently imple­ mented. The memorialists have no occasion to dispute, that, by Mr Mosman's arrestment, a nexus was created in his favours which was not in the power of third parties to defeat. But what the memorialists do hum­ bly contend, is, that Mr. Mosman could not, by his arrestment, carry a stronger or a better right than what was in Mr. Hogg himself. His arrestment could only attach the subject tantum et tale as it stood in Hogg and Son. I f William Hogg and Son had been creditors to the Mess. Symes in an obligation, which could only be implemented by saying to William Hogg a certain sum of money, Mr Mosman might have had something more to say in support of his plea. But that is by no means the case. Y our Lordships will please attend to the nature of the jus crediti that was created in favours of Hogg and Son against the Mess. Symes, in consequence of the credit that he gave them upon Dantzick. It was clearly nothing more than to be relieved of any claim that might have lain against them, in consequence of that order. I f Hogg and Son had once advanced the money, in consequence of that order, their jus crediti would in that case have resolved into a claim for the money a- gainst the Mess Symes; and the Mess Symes could not have been ac­ quit of the obligation they lay under to Hogg and Son, except by pay­ ment of the money; and his creditors arresters would in that case have had an indefeasible claim against the Mess. Symes for the money. But the case is very different, When William Hogg and Son have never ad­ vanced a sixpence on account of the letter o f credit. In that case they have have neither title nor interest to insi st, farther than to be relieved of their obligation. If the voyage had not taken place or if Capt. Hogg had no occasion to make use of the credit that was given him, having been provided with sufficiency of money otherwise; it is plain, that Hogg and Son could have had no claim against the Mess. Symes. In like manner, supposing that Mr Maclean had, in consequence of the order, advanced the money to Capt. Hogg, which happened; but that the Mess. Symes should immediately have advanced the money to Mr Mac- lean; it is clear, that, in that case, Hogg and Son would have been sufficiently relieved of the consequences of their letter of credit, and so could not have had a claim against the Mess. Symes for a farthing. Or supposing that the Mess. Cliffords, after having reimbursed Mr Mac- lean, should have wrote Hogg and Son, that they meant the money as a donation to the Mess. Symes, and that therefore they acquit Hogg and Son of any obligation they lay under to them for their reimburse- ment; it is equally clear, that Hogg and Son, being sufficiently re­ lieved of the consequences of their order, had no claim for any thing against the Mess. Symes; and if so, it seems to be equally clear, that the Mess. Symes, by directly paying the money to the memorialists, do effectually put an end to any obligation which Hogg and Son had a- gainst them: Mess. Hoggs claim went no farther than to be relieved; and if they were effectually relieved, they had no more to say. Their interest and concern went no farther; nor could they oppose relief being given them in any manner that was effectual and suficient for the purpose. A creditor in an obligation of this nature, especially when in bankrupt circumstances, could never insi st to have the money put into his hands, and he to be at liberty to give it away to his cre­ ditors, when the very person to whom Hogg and Son were bound to giveaway the money, the moment they received it, is insi sting, that the money should not be put into the hands of a person insolvent, but that it should be paid directly to himse lf; and that he was willing to acquit Hogg and Son of any obligation they lay under to them, and to rest up­ on the security of the Mess. Symes alone. The memorialists do not pretend to say, that it is in the power of a- ny person to defeat any right that Mr Mosman had acquired by his ar- restment. But what they humbly contend, is, That their arrest ment can never alter the nature of the obligation which the Mess. Symes lay under to William Hogg and Son; which obligation does not resolve into an obli­ gation absolutely to pay a sum of money, but to be relieved of the effects of their letter of credit upon Dantzick; and if they are effectually relie­ ved, in whatever shape it is done, Hogg and Son’s interest was at an end, and, of consequence, his arresting creditors could carry nothing. This This is in some measure similar to the case of a cautioner who is en- titled to relief against the principal debtor. I f the cautioner had paid the debt, his claim of relief would resolve into a simple claim of debt; and, in that case, any creditor of the cautioner’s arresting in the hands of the principal debtor, would have an absolute good right to demand payment of the money. But if the cautioner has not paid a penny of the money, a creditor of the cautioner’s arresting in the hands of the principal debtor, could not hinder the principal debtor to make pay­ ment to the original creditor. The cautioner’s claim was no more than a claim of relief, which was effectually extinguished by the principal debtor’s paying the debt himse lf; and the arresting creditor of the cau­ tioner could in that case carry nothing. A cautioner may, even before payment, insist against the principal debtor to pay him the money, that he may be enabled to relieve him- se lf; but, at the same time, the principal debtor would st i ll be at li­ berty to pay the debt to the creditor, because the cautioner’s relief was thereby effectuated, and the cautioner could never hinder the principal debtor from doing so. The cautioner, especially a bankrupt, could never insist to have the money put into his hands, when the principal debtor was ready to pay the creditor himself, and when the creditor was even insi sting that the money should not be paid to the cautioner, and was even willing to rely solely upon the principal debtor, and ac­ quit the cautioner of his obligation. And it is material in this case to observe, that the memorialists put in their claim against the Mess. Symes, the original debtors in the money, by bringing their action against them, before the Admiral near ten months before their competitor Mr Mosman used any arrest- ment in the hands of the Mess. Symes. The memorialists action was commenced in September 1769; and as Mr Mosman had made no at- tachment of the subject for about ten months thereafter, it is plain, that if the Mess. Symes had paid any time during that period, Mr Mosman could have had no right or title to complain. It was said for Mr Mosman, that though his arrestment was poste- rior to the commencement of the memorialists action, that yet Mr Scott had used arrestments, both of this and other subjects of Hogg and Son, prior to the commencement of the memorialists action; and as Mr Scott drew his payment out of other subjects, which had like- w ise been arrested by Mr Mosman, that Mr Mosman was entitled to demand an asignment to Mr Scott’s diligence against the subjects in question. It is unnecessary to enter into the question, what would have been the eff ect of such asignm ent; because Mr Mosman hitherto has not produced produced any such alignment, nor does he alledge he has any. At the same time the memorialists apprehend, that after Mr Scott had reco­ vered his payment out of the funds of his debtor, in consequence of his diligence, that his debt was effectually at an end; and that no asignation which he could grant thereafter, would entitle his assignee to maintain any competition, upon that diligence, upon any other funds of the bankrupt. Indeed, if Mr Mosman had been entitled to demand such an asi g- nation, the memorialists, in consequence of the right that had ac­ crued to them, by bringing their action, had the same equitable title to demand an assignment from Mr Scott; and, at any rate, Mr Scott could not grant such an assignment to a posterior arrester, in prejudice of the prior right which the memorialists had acquired, by bringing their action long anterior to Mr Mosman’s arrestment. But it is un- necessary to insist: farther upon these things, because, from what has been said, it is humbly hoped, that it will appear sufficiently clear, that the merits of the question are in favours of the memorialists, even although Mr Mosman’s arrestment had been prior to the commence­ ment of the memorialists action. It was said, that the draught by Maclean upon the Mess. Symes in favours of Hogg and Son, was a sufficient transfer to Hogg and Son of the debt due by the Mess. Symes, although the draught was not ac­ cepted. But a sufficient answer to this does occur, from what has been al­ ready said. I f Hogg and Son had advanced their money for that draught, something might have been said why they should be entitled to recover the money in Mess. Syme’s hands. But in this case they did not advance a penny for the draught. It was given for no other purpose than to be a voucher, that Capt. Hogg had received the money from Mr Maclean, in consequence of Hogg and Son’s order, in order to entitle them to be relieved of the consequences of the order at the hands of the Mess. Symes. But if Hogg and Son should thereafter be effectually relieved of the consequences of their order, in any of the methods already pointed out, without advancing a penny out of their pockets, the draught would in that case remain with them sine caus a, and they could have no claim against the Mess. Symes, in consequence thereof. The draught was calculated to enable Hogg and Son to ope- rate their relief. But if they were effectually relieved aliunde, they had no occasion to use it, nor would they be entitled to use i t; and their being possessed of that draught would not; hinder the Mess. Symes to relieve them aliunde, before they had advanced a penny of money, in consequence of the credit they had given. It It was said for Mr Mosman, that the memorialists had no transaction with Syme and Son, nor had so much as heard of their names, till af­ ter the bankruptcy of Hogg and Son; that they had no claims against, nor dealings with any person other than Hogg and Son; that they had received an order from them to furnish a certain sum to Mr Maclean of Dantzick, in order to reimburse him of money which he had paid, at their desire, to Capt. Hogg; and that the memorialists having com­ plied with this order, and having, in doing so, followed the faith of William Hogg and Son, the memorialists claim for reimbursement must be against Hogg and Son alone. But an answer to this does in a great measure arise from what has been already said. It has been already observed, that Mr Mosman, as an arresting creditor of William Hogg and Son, can be in no better si- tuation than William Hogg and Son. And it is plain, that if the que- stion was with them, they could not be allowed to insi st against the Mess. Symes for reimbursement of the money, which the memoria- lists had advanced on their account, at Hogg and Son’s desire, when Hogg and Son had in reality advanced nothing upon the Mess. Symes account; and when, in fact, the petitioners were willing to give up any claim they might have had against them, on account of the order or letter of credit that Hogg and Son had granted. It is plainly begging the question to suppose, that no claim could lie at the instance of the memorialists against the Mess. Symes. I f the Mess. Symes had impressed the money into the hands of William Hogg and Son, they perhaps would have been entitled to plead a bona fide payment in bar of the memorialists claim against them; but while the money is in medio, it, with submission, appears clear to the memo­ rialists, that they have a good claim against the Mess. Symes. And to view this in the simplest light, let the case be supposed, that Hogg and Son had given no letter of credit, but that Mr Mac- lean of Dantzick had, without any order, advanced money to Captain Hogg, to purchase goods for the Mess. Symes behoof; and that Mr Maclean had, for his reimbursement, drawn upon the memoralists, although the memorialists were under no obligation to answer the draught; yet if they did de fa cto pay the money, it seems perfectly clear, that the memorialists would have had a good claim to be reim- bursed by the Mess. Symes, who reaped the benefit of the payment. Such claim would be clearly founded in law, upon this ground, that it was in rem versum of the Mess. Symes. Where a person lays out his money for the benefit of another, not animo donandi, although the money was not advanced in consequence of any contract or agree­ ment ment betwixt the parties, the law will intitle him to recover his pay­ ment from the person who is benefited by it, This is an action well known in the law, and is founded in the highest principles of equity and justice, ne quis cum alterius jactura locupletior s it factus An instance of this does frequently occur amongst merchants. Where a bill meets with dishonour, a third party frequently accepts for the honour of the drawer or indorser, in order to prevent the draw- er or indorser from being made liable in exchange, &c. on account of his draught being dishonoured. The person who pays the bill in this case, does not do it in consequence of any contract or agreement with the person on whose account it was paid, nor had any paction inter­ vened betwixt them, in consequence of which he could subject him for his reimbursement; but as he was clearly benefited by the payment, so the law will subject him to reimburse the person who made the pay­ ment a c t i o n e d e i n r e m v e r s o., And if the Mess. Symes would clearly have been bound, as being lo- cupletiores facti, to reimburse the memorialists, if they had paid the mo­ ney to Mr Maclean, without any order from Hogg and Son; it can­ not alter the case, that the payment was made by the memorialists, in consequence of orders from William Hogg and Son. The memoria­ lists thereby had William Hogg and S on bound to them ex mandato, as an additional security for their reimbursement: but this additional se- curitv would be no bar to the memorialists recovering payment from the Mess. Symes, for whose behoof the money was advanced, unless the Mess. Symes could alledge, that they had previously impressed mo­ ney into the hands of Hogg and Son for the foresaid purpose. When the money remains in the hands of the Mess. Symes, the me­ morialists claim does lie diredly against them; and they can discover no reason why William Hogg and Son, or their creditors, should have any claim against the Mess. Symes, if in fact they have advanced no­ thing on this account; but when, on the other hand, the memorialists are willing to rely upon the Mess. Symes alone for their payment. The security which the memorialists had in consequence of Hogg and Son’s order, was a security entirely in their own favours, and which therefore they are at full liberty to discharge and renounce, if they incline and if they do so, the plain consequence thereof seems to be, that as it would relieve Hogg and Son of any claim at the in­ stance of the memorialists, it must also relieve the Mess. Symes of any claim at the instance of Hogg and Son, and of consequence of any claim at the instance of their creditors. • • % It is a clear rule in law, that a cautioner is not entitled to extend his claim of relief against the principal debtor beyond what he truly paid. I f the cautioner got an ease from the creditor, he is bound to commu­ nicate the benefit thereof to the principal debtor; and if the creditor should discharge the cautioner altogether without payment, the cau­ tioner’s claim of relief is thereby effectually at an end. The claim of Hogg and Son against: the Mess. Symes falls truly to be viewed in the same light. The obligation which the Mess. Symes lay under to them, was in reality no more than to relieve them of the consequence of the letter of credit they had given Captain Hogg upon Dantzick; and i f Hogg and Son are effectually relieved of that obligation, without pay­ ment of a penny, it is inconceivable, how either Hogg and Son, or their creditors, can make any demand against: the Mess. Symes. It was said for Mr Mosman, that Mr Maclean was ordered, by William Hogg and Son, to advance so much money to Captain Hogg; and, for his reimbursement, to draw upon the memorialist s; that in this case he had done both; after which he had no farther concern in the matter, and had no title to recall the draught transmitted to Hogg and Son upon the Mess. Symes. But, with all submission, the memorialists cannot perceive the force of the observation. The memorialists have no occasion to inquire, how far it was in the power of Mr Maclean alone to recall the draught that was made upon the Mess. Symes in favours of Hogg and Son. But the memorialists can have no doubt, that it was in the power of them and Mr Maclean jointly to recall that draught. William Hogg and Son had no right to hold it farther than they could qualify a legal interest in i t; and their interest in it could never be carried farther, than to be relieved of the consequences of the letter of credit, which they had granted for the purpose of supplying Captain Hogg with the money in question, for behoof of the Mess. Symes; and if Wil­ liam Hogg and Son should be otherwise relieved of the consequences thereof, they had no farther interest in the draught, nor were entitled to hold it; and it was certainly in the power of Mr Maclean and the memorialists, to relieve Hogg and Son effectually of any obligation they had come under by their letter of credit. It was said for Mr Mosman, That the Lord Ordinary had found, that the Mess. Symes were entitled to apply the debt due to them by William Hogg and Son, in extinction pro tanto of the claim for the mo­ ney that was advanced on their account at Dantzick; and that in this judgement the memorialists had acquiesced; and that, by the same rule, rule, the balance ought to be affectable by the diligence of the creditors of William Hogg and Son. But, with submission, there is no sort of similarity betwixt the two cases. The Mess. Symes were no doubt under an obligation to im- press money into the hands of Hogg and Son, to answer the order given on Mess. Symes account. The allowing their money to remain in Hogg and Son’s hand, might with some propriety be considered as a payment pro tanto on the foresaid account; and it appeared to the memorialists, that if the Mess. Symes had bona fide, before any interpellation, im- pressed money into the bands of William Hogg and Son, for the pur- pose of reimbursing the memorialists, that there was great equity in con- sidering this as a liberation to the Mess. Symes. The actio de in rem verso would not lie at the memorialists instance against the Mess Symes, after the Mess. Symes had paid away the money to Hogg and Son. But because payment made by the Mess. Symes to Hogg and Son might be sufficient to liberate them from any claim at the instance of the memo*- rialifts, it will never from thence follow, that William Hogg and Son could compel the Mess. Symes to pay over to them the money which they still owed, when they had advanced nothing on their account, and when the very persons who had advanced the money, opposed the mo­ ney being put into the hands of William Hogg and Son, being wil­ ling to rely for their payment entirely upon the Mess. Symes themselves. And it is plain, that the arrefting creditors of William Hogg and Son can be in no better situation. In respect whereof, & c R O. M A C Q U E E N