Stipulations in favour of third parties. - Order to pay money to third parties. - Effect to the third party, of voidance of the right by which he had been favoured.
Lady Pitmedden and her Husband v. Sir Robert Gordon
Date: 18 December 1707 Case No. No 8.
One assigned a bond to a trustee, taking him bound by back-bond to denude in favour of certain creditors in order. Both parties deceased before the money was recovered. The first named creditors found to have sufficient interest and title to prosecute the debtor in the bond.
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Alexander Farquhar merchant in Aberdeen being creditor to umquhile Sir Ludovick Gordon of Gordonston, conform to a back-bond, Farquhar assigns that debt to Mr Robert Forbes, and takes his back-bond, declaring it was but in trust, and that he should denude (being always paid in the first place any expense he should ware out upon the process), and that in favours of Mr William Lauder (to whom he stood debtor in a considerable sum of money) in the first place, and, after his payment, to William Gordon and some others of the said Farquhar's creditors, in the next place. Farquhar and Forbes his trustee being remiss in carrying on the process against Gordonston, Mr William Lauder applies to the Lords, craving to be admitted for his interest; but before this is determined, the parties die, and the Lady Pitmedden, as heir and executrix to her father, raises a transferring against Sir Ludovick's heirs; and her title being objected against, the process is transferred in statu quo, and being now insisted in, the dilator is renewed, that you have no action against Gordonston till you first denude Forbes the trustee, and you obtain the concourse of the other creditors of Farquhar's, mentioned in Forbes's back-bond, otherwise we have not a legal full contradictor; for a res judicata betwixt the lady and me, will not produce me an absolvitor against Farquhar's other creditors mentioned in the backbond, in case they should pursue me; so the lady's direct action lies not against Gordonston, but against the heirs of Mr Robert Forbes, the trustee, to make him denude in the terms of his backbond in favours of Mr William Lauder, and his heirs; and this is plainly insinuated by my Lord Dirleton, voce Trustee, committing treason, and was decided in a parallel case 18th January 1706, betwixt Chaplain and Henderson*, where the Lords did not think a back-bond equal to a retrocession and transmission of the right. Answered, That Mr William Lauder being nominatim insert in the backbond, and ranked primo loco, who can doubt but Forbes was only his hand, and so it accresces to him; and in a case betwixt Mackenzie
* Examine General List of Names.
and Watson, 5th February 1678, voce Personal and Real, the Lords preferred him who had right by the back-bond to a creditor who arrested for the trustees debt, without putting him to the necessity of an action for denuding. The Lords considered, that, by the tenor of Mr Robert Forbes's back-bond, there was no debt preferable to Mr William Lauder's, but only what Forbes should deburse in carrying on the process, and that the creditors named after him had no interest to oppose payment of his sum; therefore they sustained the Lady Pittmeden's interest as sufficient to give her a title on Forbes's back-bond to prosecute this action against Gordonston, the lady always finding caution to pay what expenses shall be instructed, that Forbes wared out on this matter, in case the fund in Gordonston's hand be not able to pay both.
Fol. Dic. v. 1. p. 512. Fountainhall, v. 2. p. 404.
