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The Laird of Dun having disponed certain lands to the Laird of Morphie, he gave a back-bond, obliging himself to pay certain particular sums of Dun's debt, with a general clause to pay all sums due by him to the Earl of Ethie for himself, or whereunto Ethie was assignee; and by a posterior bond of corroboration, the foresaid back-bond, and that clause is repeated, and then it bears, “that a sum of £.2,000 due to Robert Beattie, whereunto Ethie was assigned, was not yet satisfied,, therefore Morphie obliges himself in corroboration of the first bond, and but derogation thereto, that being-satisfied of the sums due to himself by Dun, he should pay Beattie's sums out of the superplus of the price of the lands: After both bonds Ethie grants a retrocession to Beattie, bearing, “that his name in the assignation was only in trust, to Beattie's behoof, and assigning Beattie to the back-bond, and bond of corroboration. Beattie's executors pursue Morphie upon the general clause in his first back-bond, to pay this debt whereunto Ethie was then assignees. It was answered for Morphie, that the clause being only in favours of Ethie, who stood then assignee to this sum, Ethie might have discharged the clause, or qualified it as he pleased: Ita est, he qualified the back-bond by the bond of corroboration, that Beatie's sum should only be paid out of the superplus of the price, which therefore must be accounted as only due, in so far as there is a superplus. It was replied, That by the first back-bond, there was jus acquisitum to Ethie, not only for himself, but as being in trust for Beattie, which therefore Ethie could not qualify or lessen by the bond of corroboration; neither is the said corroboration a deed of Ethie's, but of Morphie's, whereupon Beattie doth not found; 2do, The bond of corroboration bears expressly, but derogation to the first back-bond, and so nothing therein can derogate; therefrom. It was duplied for Morphie, That there being no writ to instruct any interest of Beattie's, but the reposition granted by Ethie, bearing in the narrative of it, that Beattie's assignation to him was in trust, that being after both backbonds, there was then no right acquired to Beattie, but Ethie might discharge or alter the back-bond as he pleased; and therefore Ethie's acceptance of the second back-bond is as effectual as if he had subscribed it; and though it bears a clause, but derogation of the back-bond, that general clause cannot take away the effect of a special clause subjoined, which is truly a derogation of the first back-bond, limiting Beattie's payment to be out of the superplus of the lands, and therefore the general clause is but like protestatio contraria facto, and is only to be understood, but further derogation to the first back-bond, than what is particularly expressed in the second,
The Lords found that Ethie standing in the right of the assignation without any anterior writ to instruct the trust in favours of Beattie, that he might derogate by accepting the bond of corroboration, and that he had derogated thereto, as to the nature of payment, notwithstanding of the general clause, but derogation.
