Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
George Suity and his Curators v. Colin Campbell
Date: 24 December 1696
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Lauderdale reported George Suity and his Curators against Colin Campbell, as representing his grandfather, for implementing a back-bond granted by him in 1657, declaring he had received in trust a debt due to Suity by Mr Thomas Lumsdin, factor at Campvere; and that, after payment of what Lumsdin owed to himself, he should be countable to Suity for what he should farther receive from Lumsdin; and contended, that, by accepting this trust, he was liable in diligence, and ought either to instruct what he has done, in order to the recovery of it, or else pay the debt; seeing it was mandatum mixtum, partim mandantis et partim mandatarii gratia; the trustee being preferred quoad his own proper debt, he ought, ex natura contractus, to have acted faithfully in his trust.
Alleged,—The back-bond neither expressed nor imported any obligation upon him to do any diligence; and at most tenebatur tantum de dolo et lata culpa, seeing you never interpelled, nor required me to do diligence; likeas, it would have been frustraneous, the common debtor being broken: and the Lords have often found the acceptation of such commissions did not bind to diligence, 17th July, 1672, Earl of Wemyss against Sir William Thomson; 18th July, 1672, Watson against Bruce.
The Lords thought it hard to oblige the grand-child now, after thirty-eight years' time, to condescend or instruct whether there was diligence done or not; and therefore assoilyied him, unless they could instruct he had got payment both of his own and theirs; but withal ordained him to denude, and retrocess the pursuer in his own place, though the reposition would be now ineffectual by the debtor's insolvency. But the taciturnity for so long a time, and posterior transactions, without noticing this, and the never interpelling him either to do diligence, or denude, determined the Lords much in this decision.
