Scottish Court of Session Decisions

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

Janet Tran
v.
The Laird of Dunlop

Date: 7 July 1670

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In a beforementioned suspension, raised at the instance of the said Janet, against the Laird of Dunlop, who had charged her upon a bond, granted by her to Robert Brown, for the sum of £1200 or thereby, to which he was assigned, upon this reason,—That her bond granted to Robert Brown, was only for liberating Allan Dunlop, her son-in-law, out of prison; who was incarcerated at Robert Brown's instance, for the like sum: and that the charger had confessed, by his oath, that he had satisfied Robert Brown, at the desire of the suspender, and upon promise to procure an assignation to Allan Dunlop's bond, whereupon Brown had led the first comprising of Allan's estate:

It was answered, That the charger, before that time, having an heritable right, from Allan, of his lands and estate for sums equivalent to the worth thereof; albeit he had confessed, that he had satisfied Brown at the said Janet's desire, yet that could not oblige him to assign Brown's bond with the comprising led thereupon, it being prior to his own right, and to his prejudice and hurt; and that he was content to give his oath, that he never intended to satisfy Brown upon any other reason but to liberate Allan, and to acquire the apprising for bettering his own security.

The Lords, notwithstanding, did suspend the letters simpliciter; unless Dunlop would assign the bond granted to Brown, with his apprising led thereupon, to the suspender, that she might get her relief: for they found, that Dunlop's oath was an acknowledgment that he was intrusted by the suspender to satisfy Brown, and to procure an assignation; which, in law and reason, could not be interpreted but that it was to have been procured for her behoof and relief, and not for Dunlop's behoof, who was to be satisfied by the suspender for the sums of money paid by him to Brown for the said assignation.

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