Scottish Court of Session Decisions

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

Henry Murray of Lochlean
v.
Sir William Murray of Auchtertyre

Date: 24 June 1674

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In a pursuit at Lochlean's instance, as assignee by the heirs of Mr John Malloch in and to a back-bond granted to him by Auchtertyre, whereby he was obliged to lead a comprising for his own debt, and the said Malloch, for their security of the sums of money due to them; and in case of sale of the lands, to dispone as much thereof to the said Malloch as would be effeiring to his sum, principal, annualrent, and expenses; as likewise bearing, that he should not dispone without Malloch's consent. Whereupon he craved, that, the comprising being now expired, Auchtertyre should be decerned to dispone to him a full proportion of the said lands, as, Auchtertyre's own sums and his being calculated, would fall to his share.

It was alleged, That the back-bond could not furnish any such action; because, Murray of Buchantie, being the common debtor, against whom several creditors were leading comprisings, Auchtertyre took upon him the trust voluntarily, and led a comprising upon the said back-bond, whereby he hath a power to dispone with Malloch's consent; and having now disponed the said lands to the common debtor, and thereby gotten payment to Malloch, as well as himself, of the whole principal sum and annualrents, and reponed Buchantie, the common debtor, to his estate; it is a most odious and rigorous pursuit, that this pursuer, who was but assignee by Malloch for an inconsiderable sum, should crave that Auchtertyre should dispone to him a part of the lands far exceeding the worth of the whole sums due; he being in as good condition as Auchtertyre himself; especially seeing this trust was undertaken with consent and knowledge of the common debtor, who was present, and did write the back-bond at his own house, and delivered the same to Malloch.

It was replied, That, the back-bond bearing a clear trust, the pursuer ought to have the full benefit thereof, as if the expired comprising had been led in his own name; and Auchtertyre, the trustee, was in pessima fide to dispone these lands without Malloch's consent.

The Lords, before answer, having ordained Auchtertyre to condescend what way he was intrusted to lead that comprising; whether to the benefit of the common debtor, as well as to Malloch and himself: and thereupon having taken the oath of Robert Hamiltoun, who declared he was ordered by the common debtor to lead that comprising; and that he paid the expenses; and that Auchtertyre was willing to depone upon the verity thereof: as likewise, finding that the back-bond was all written by the common debtor's hand, at his own house, and that he had paid yearly the annualrents, and a part of the principal sum, they did assoilyie Auchtertyre, upon payment of the remainder of the principal sum and annualrents, and expenses, not only upon the condescendence foresaid, but likewise because, in law it being factum imprestabile to dispone any part of the lands which he had already disponed to the common debtor, all that he was liable for in law was damnum et interesse; which was liquidated by the back-bond to be the principal sum, annualrent, and expenses; which Malloch could never refuse, if he had consented; and he being dead before the disposition, his children wrere in as good condition as if he had consented.

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