Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
William Douglas v. Bailie Telfer's Heirs, William Fulton, and Margaret Alcorn
Date: 17 February 1702
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The Lord Arbruchel reported William Douglas, chamberlain to the Earl of Roxburgh, against the heirs of Bailie Telfer, William Fulton, their tutor, and Margaret Alcorn. John Telfer having granted bond for ¿£800 to Janet Potts, relict of Thomas Alcorn, she grants him a receipt and obligement of the same date, declaring she had borrowed up the papers assigned by her to him, and obliged herself to make an assignation thereof to Margaret Alcorn her daughter, and to cause her transfer the same to the said Bailie Telfer. Douglas being a creditor to Janet Potts, he arrests the £800 in Telfer's representatives' hands; and pursuing a forthcoming, they allege,—That Telfer's bond was but surrogatum in place of what Janet was to assign of Lanton and Cockburn's bond; and Janet having given a back-bond of the same date, and before the same witnesses, this was a correspective obligation, and of the nature of a mutual contract, and so behoved to be implemented, either before, or at least simul et semel with Bailie Telfer's heirs' fulfilling the bond, seeing it was the true and immediate cause of his granting that bond.
Answered,—Telfer had given a clear simple bond for a liquid sum to Janet Potts, her heirs, executors, or assignees, without any clog, quality, or condition; and he, as Janet's creditor, having arrested it, was not concerned to notice any private latent obligement she had given, seeing the bond had no relation thereto, nor made any mention thereof; otherwise simple bonds were never secure, because a back-ticket might qualify, annul, and restrict them; which was a great inconvenience and stop to commerce, seeing there was no register of such backbonds to certiorate us; and such back-bonds ought to have no more force than an assignation, which, if not intimated, does not affect the right.
Replied,—Surrogatum sapit naturam ejus in cujus locum subrogatur; and therefore Margaret Alcorn not having transferred Lanton and Cockburn's bond, Bailie Telfer's obligement is causa data causa non secuta; and till he get that right, he cannot be forced to pay: and as to the inconvenience, parties in such cases must rely on the warrandice of the parties against whom only they have recourse. And Dirleton, in his Doubts and Questions, voce Correspective Obligements, states this question,—How far such back-bonds may prejudge an assignee or an arrester? but does not determine it: But Stair has two decisions that such back-bonds militate against singular successors;—13th December 1 672, Lord Lion against the Feuars of Balvenie; and 5th February 1678, Mackenzie against Watson.
The Lords generally thought a back-bond militated against singular successors, where the right was personal without infeftment, (albeit this proves very hard and uneasy:) but in regard it was not clear that the one was the cause of the other in this case, therefore, before answer, they ordained the writer and witnesses to be examined what was actum et tractatum at the time; and if he granted bond on the account of the said Janet Potts's obligement to him.
It were both clearer and sincerer in all such transactions to make them relative to the other.
