Scottish Court of Session Decisions

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

Elizabeth Dundas
v.
James Glenn

Date: 22 July 1673

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The said James, being intrusted with a back-bond by Dundas of Philipstoune, for the sum of 4000 merks, payable by him and his heirs, wherein he did insert his own name; which he having confessed to have done, at the desire of the granter, whereupon decreet was given against him to grant an assignation to the said Elizabeth, that she might pursue the heirs of Philipstoune; he did suspend upon these reasons;—That he was willing to grant an assignation, so the warrandice ought to be qualified with an exception of a general discharge granted by him to Philipstoune himself, which was after the date of the said bond;— that it was lawful for him to do the same, seeing Philipstoune and he being mutually debtors to one another, they did subscribe mutual general discharges during the time of the trust, and before the delivery of the bond to the said Elizabeth; so that, if the said discharge were not excepted out of the warrandice, the heirs of Philipstoune, being distressed, would have recourse against him; and so, for intrusting his name, should be made debtor against all law and equity.

It was answered, That the reason was noways relevant; first, Because the decreet was given against him compearing and acknowledging the trust without alleging any such quality; and, albeit he could be reponed, yet it ought not now to be received; because his name being only intrusted, and the bond being still in his possession, he was in pessima fide to give a discharge, which might take away the same: and if he had done any thing against the trust, it ought not to prejudge the charger, who will thereby be totally defrauded of her right; but he ought to grant a valid renunciation, whatever maybe the importance thereof as to himself.

The Lords did find the letters orderly proceeded, aye and while he should grant an assignation from his own proper fact and deed, without any exception, as being a trustee; and so could not do any deed in prejudice of her for whom his name was borrowed: But declared, That if the heirs of Philipstoune, being distressed, should pursue their relief upon the general discharge, they would then consider if this bond could be comprehended in the same; or if it could only be of the suspender's own debts contained in the general discharge; seeing Philipstoune did not retire the bond when the mutual discharge was subscribed, nor at any time during his lifetime: and it were very hard to make a naked trustee pay the debt for lending his name thereto.

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