Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent the Transferring of apprisings
Date: 25 February 1671
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Where a man's name is borrowed to the leading of an apprising, the ordinary way is, that he grants a back-bond to the person for whose behoof it is, obliging him to dispone the apprising when it shall be led to him, with all that has followed or may follow thereupon. Though this be the common style, yet it proves oft inconvenient; for if the party entrusted die before he dispone, or the person for whose use it is, the back-bond must be tranferred either in the heir active or against the heir passive; and if the person intrusted his heir renounce, or let a decreet go against him as lawfully charged, then he must comprise or adjudge of new again; yea the trustee's creditors will come in pari passu, (they doing diligence,) as to the very lands to which he had but right in trust. And therefore it's only fit to take a formal disposition per verba de presenti to the comprising to be led at his instance and all that may follow thereupon, with an obligement to renew if required. (Vide infra, February 1676, No. 464; item, 1st December, 1671, No. 275; item in November, 1677, No. 647, § 2.) Neither will any object to me that a nonens cannot be assigned nor disponed; but such is a comprising not yet led; for they may as well say that a man cannot sell nor dispone a liferent, seeing it has no being but for the year current, and the subsequent years are not due unless the liferenter outlive the legal terms of the same; and yet there is nothing more ordinary than disponing of liferent rights. Neither does that clause, whereby I take him obliged to renew it if need be, prejudge, because a man who has a general assignation to a number of debts due to his cedent has right good enough to them by that general assignation, and yet he may take a special assignation to every one of them apart.
