Scottish Court of Session Decisions

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

Alexander Lesly of Overtulloch,
v.
The Viscountess of Frendraught, David Gregorie, and Morisone of Bognie

Date: 23 February 1677

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In a pursuit, raised at the instance of Alexander Lesly, against the Viscountess of Frendraught, and her son David Gregorie, and Morisone of Bognie; to hear and see it found, that he having accepted of a factory from the Viscount, for intromission with his rents within the parish of Forgue and Innerkeithine, to be applied for satisfaction of the Viscount's debts, for which he himself was cautioner; and which having accordingly uplifted and applied, he ought to be exonered.

It was alleged for the Viscountess,—That the said lands, belonging to David Gregorie, by an expired comprising; by her contract of marriage with the Viscount, it was specially provided, that the money contracted by her, as her portion, should be employed for relief of such creditors as had comprised his estate; and the rights thereof, taken for the Viscount and her in liferent, and their son in fee: and, accordingly, the said right was acquired from David Gregorie and Morisone of Bognie; and, therefore, the factory granted by the Viscount only could exoner the pursuer, unless he had particularly applied his intromission for payment of these creditors.

It was alleged for David Gregorie, That any disposition he made to the Viscount, being with a special reservation of an annualrent out of the said lands, effeiring to the principal sum of five thousand merks, for which he remained creditor, and in which disposition the factor himself was witness, he was in pessima fide to apply his whole intromission witli the rents to other creditors; and so was liable to him for the whole annualrents which he had misapplied.

It was alleged for Bognie, That he being a true and a lawful creditor; and the disposition of the said comprised lands being taken in his name, for his relief; and any right he made to Frendraught being affected with a back-bond, that the said lands should be burdened with the debts for which he was creditor or cautioner; no posterior factory granted by the Viscount could free the factor, unless they had been so applied.

It was replied for the pursuer, That he was not obliged to take notice of any such reservations or back-bonds, which were not known to him, and could only affect the Viscount and his representatives; so that, he being only obliged to employ his intromissions in general for payment of the Viscount's debts, which accordingly he had done, he ought to be exonered; and albeit he was a witness in Gregorie's disposition bearing that reservation, yet he was not obliged, nor did know the whole tenor of the disposition; and so having given out the whole sums intromitted with, without being interrupted, in law he cannot be liable.

The Lords did decern the factor to be free, as having bona fide followed his commission before interruption; and found, that his being a naked witness could not bind him, unless Gregorie had interrupted him, or that he had taken him personally obliged to pay his yearly annualrent, but reserved him a poinding of the ground, as accords.

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