Scottish Court of Session Decisions

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

The Earl of Southesk
v.
The Earl of Broadalbin and Sir John St Clare

1687. July.

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Sir Robert St Clare's name being in trust in an adjudication of the Lordship of Caithness, he obliged himself, by back-bond, to denude thereof in favours of the Lord Caithness, or those he should name, upon payment of 100,008 merks, due to himself, the adjudger, and Orton's being paid and relieved of his cautionary for the Lord Caithness. Sir Robert made over the adjudication, with the burden of Orton's relief, to Broadalbin, who had right to the back-bond, upon receiving payment from him of 100,008 merks. Sir John St Clare was pursued for the payment of Orton's debt, as if the back-bond, quoad Orton, had been contravened. Alleged for the defender, 1. The back-bond imports no obligement on Orton, but only a faculty to Sir Robert to have retained the adjudication till Orton's debt might be paid, which he had a prospect to acquire; 2. The disponing the adjudication, with the burden ut supra, was no contravention of the obligement. The Lords found the back-bond did import an obligement in favours of Orton; but, before answer to the second, ordained Southesk and Sir John to concur in the process against Broadalbin, either for restating Sir John in statu quo, and bringing the adjudication into his person, or for declaring it liable, and really burdened with Orton's debt.

Page 48, No. 214.

[This case is more distinctly reported by Fountainhall.—26th July 1687.]