The duty involved in a trust found not to oblige the person entrusted to pay more, than as much as might have been recovered by the right entrusted.
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The Earl of Northesk having charged Pittarro for £.2,000 contained in his bond, he suspended on compensation, as having obtained assignation from Catharine Carnegy to the sum of £ 1000, and to Northesk's back-bond, bearing, “That he having received assignation from Catharine and her husband, and thereupon had with several other sums of his own apprised the lands of Craig their common debtor, therefore he obliged himself so soon as he should recover payment of the said apprising, he should pay the said Catharine;” and true it is, that Northesk hath disponed this apprising to Hatton, and so must be presumed to have gotten payment, otherwise he would have reserved this right, or disponed it with burden of the back-bond. It was answered, That albeit Northesk hath disponed the apprising, he cannot be liable, unless in the terms of his back-bond he had gotten payment, which no presumption can infer, quæ cedit veritaii; the agreement betwixt him and Hatton is produced, by which it appears that there were anterior rights upon Craig's estate wholly exclusive of this apprising, and that all he got was upon the account of his anterior rights; neither is this liquidated how far the said Catharine could have interest. It was replied, That the backbond cleared that Northesk's name was but in trust, and that at no time he could refuse to denude himself, unless he had paid the sum, and now he cannot denude, because he is already denuded, without reservation or burden of the back-bond. It was duplied, That to denude is factum, and no ground of compensation, and it now being factum imprestabile, he can only be liable for damage and interest. It was triplied, That the fact became imprestable by his own deed, and therefore he cannot put the party truster to dispute the validity of their rights when he hath put the same away, as was found in the case of Janet Watson against Mr. Walter Bruce, No. 70. p. 3537. voce Diligence.
The Lords found, that in so far as the Lord Northesk had received benefit, or might have received benefit by the said apprising as to this debt, and in so far as the entruster was damnified, which could be instructed and liquidated instanter in this process, the Lords would sustain the same in compensation, and no further.
