Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Andrew Douglas, Macer,
v.
Alexander Crawford

Date: 17 June 1669

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Mr Thomas Crawford having gotten an infeftment of an annualrent, effeiring to 3000 merks, out of a tenement belonging to John Douglas, the pursuer's father, and having given a back bond, bearing, that 900 merks belonged to Andrew Douglas, and that whensoever he should be paid of his 3000 merks, that he should pay the said 900 merks to the said Andrew: there was pursuit intented against Mr Thomas's son, at the instance of Andrew, for the bygone annualrents of the 900 merks, and for denuding of himself of a proportional part of the infeftment effeiring thereto.

It was alleged, That the back-bond could furnish no such action; bearing no such obligement, but only to make payment of the 900 merks, after payment of the whole 3000 merks.

The Lords, notwithstanding, did sustain the pursuit as to the bygone annualrents, in so far only as the defender had intromitted with the rents of the tenements; for which they ordained him to count and reckon: and did likewise decern him to denude himself of a proportional part of the right, in respect the back-bond did prove a clear trust as to that sum, and that Mr Thomas's name was only borrowed; whereupon, quocunque tempore, he might be pursued to denude; which being done, would liberate him from the obligement to make payment.

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