Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

The Laird of Collein
v.
Hugh Kennedy

1682. November.

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Collein, being resting 1000 merks to Kennedy of ————, he drew a bond for the money, payable to Kennedy and his wife, &c. and intrusted the same to Kilkerran, to be delivered by him to the creditor: afterwards, upon Kilkerran's representing to Collein that Kennedy desired rather to have a blank bond, Collein gave him a bond blank in the creditor's name, forgetting to retire the former: after payment of the last bond, Kilkerran procured from Kennedy an assignation to the first; Kennedy being pursued by Collein for damage and interest, through his assigning of the first bond after the last was satisfied; and having deponed that the first bond was never presented to him for his own debt, but that he had granted the assignation eighteen months after the date of the bond, upon Kilkerran's saying that he had made use of his and his wife's name to secure the money from his own creditors, which he did bona fide, thinking that he was but denuding himself of a trust;—the Lords assoilyied Kennedy, though there were many obvious presumptions that Kilkerran had not acted fairly in the matter; particularly, he was a subscribing witness in the first bond, which made it look like something else than a trust for his behoof.

Page 37, No. 165.