Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Mr Roderick Mackenzie v. John Watson
Date: 6 February 1678
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The case of Mr Roderick Mackenzie, advocate, and John Watson, was this day, on a report, decided. It was thus:—There was a bond, blank in the creditor's name. Hector's name was filled up in it; and, at the filling up, he grants a back-bond, declaring it to be merely in trust, to the behoof of, &c. Thereafter, Hector's creditors arrest this money in the debtor's hand. He to whom the back-bond was given, compears for his interest, and, by producing the back-bond, proves the money arrested to be his. (See Dury 14th November 1628, Cumming. See the Compend of Durie's Decisions, verbo Bands. See this decision elsewhere. See 22d February 1681, Poor of the West Kirk.)
Answered,—The back-bond never being intimated, it can produce and found no more but a personal action against Hector, the granter; for the fee and property of the money, stood in Hector's person; and, if such back-bonds were allowed, it would open a door to all cheats. Replied,—The back-bond made the money his to whom the back-bond was given. That teneris scire conditionem ejus cum quo contrahis, L. D. de Regulis Juris. That, where a bond is apprised or adjudged, of which there was a discharge anterior, yet the discharge meets the assignee though it be a latent deed. See of discharges of bonds or tochers, of the same date with the obligements, supra, No. See also of mutual and corespective obligations, supra, [No. 377, December 1672,] in the Master of Saltan's case.
The Lords found the back-bond needed no intimation, and that it affected the money so that it could not be arrested for the person's debt whose name was filled up in the bond, if the back-bond was truly of a date prior to the arrestment.
This decision was thought very strange by some; yet the Lords had formerly decided the same case thus: yea, they had found the same before, in a stronger case, viz. though it was comprised by the trustee's creditors from him, yet that the back-bond met the said singular successors.
The Lords were as sensible as any, of the many and great inconveniences which followed this decision: but wished a Parliament might remeid it, by ordaining such back-bonds to be registrate; for the Lords could not help it.
