Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

James Williamson
v.
Archibald Law

Date: 1 March 1623

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In an action pursued by James Williamson against Mr Archibald Law, who was made assignee to an obligation made to one William Hannage and Dickson his spouse by Mr Robert Williamson, and certain others his cautioners, containing the sum of 2000 merks; which assignation the said James Williamson, heir and executor to the said Mr Robert, desired by his summons to be assigned back again by the said Mr Archibald Law to him, as being made in favours and to the use of the said Mr Robert himself, who had only borrowed the said Mr Archibald Law's name in trust to his own behoof, he being his sister's son, on whom he might have reposed and concredited the same;—the defender compeared in this cause, and defended, contentiously, that this assignation which was filled up with his name at the desire of the said Mr Robert, who, as the defender alleged, had freely given the same to him; likewise it was registered in the books of Council, bearing his name, and letters raised thereupon before the decease of the said Mr Robert; and therefore could not by any presumption be taken away from him, upon pretext of borrowing his name and trust, the trial whereof ought only to be taken by writ or the defender's oath; and that the writ perfected could not be destroyed, nor otherwise taken away. The Lords examined in this cause certain persons witnesses who knew of the trust, albeit they were not inserted in the assignation, which they did ex officio: and by their declaration, albeit the assignee was solemnly examined, and denied the trust, and took upon his conscience, that the assignation was made to himself, and to his own proper use, by the free gift of the same, procured to him by the said Mr Williamson his mother-brother, and albeit the same was registered in Mr Robert's time, and so was made the assignee's evident in his own time; yet they found the same to be done in trust, and therefore ordained the defender to make retrocession of the said assignation, in favours of the said pursuer representing the said Mr Robert.

Act. ——. Alt. Russel. Scot, Clerk.

Vid. 27th July 1624, Lady Stanypeth.

Page 54.