Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Alexander of Drumochrien v. The Lord Bargeny
Date: 20 December 1695
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Phesdo reported John Alexander of Drumochrien against the Lord Bargeny, upon his father's back-bond, declaring he had received from him a precept of poinding of the lands of Girvan-Mains, and a blank assignation to the debt, to be consulted at Edinburgh with lawyers, and obliged him to return them back to him; which he keeping, for the space of twenty-five years and more, and never offering them back, but adjudging Girvan-Mains's estate for debts of his own, and wholly neglecting this, he ought, nomine damni, to pay the sum.
Answered,—These bonds are strictly to be interpreted; and he, having undertaken to do no diligence, and not having received the bond itself, (which the pursuer always retained in his own hands,) he might have done what diligence he pleased on the same.
Replied,—That, in such trusts, there is great exuberance of faith, et plus actum inter partes sœpe quam est scriptum; and, in odium negligentiœ, Bargeny should be liable.
The Lords found, A back-bond of the foresaid tenor did not oblige to diligence; and therefore assoilyied Bargeny. See the like, 18th July, Janet Watson against Bruce.
