Mr James Smith of Whitehill, v. Mr Walter Stirling, Writer in Edinburgh.
Date: 5 December 1712 Case No. No. 31.
Discharge of a trust.
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Mr. James Smith obtained a gift of Patrick Steill's escheat. Mr. Walter Stirling was assigned to 6000 merks owing by Steill to Thomas Deans, Esquire, and the assignation duly intimated, before the Rebellion. Patrick Steill assigned several bonds due to him by the deceased Robert Deans, merchant in Edinburgh, to Mr. John Cameron, in trust, who obtained decree of constitution and adjudication against the representatives of Robert Deans, and transferred the whole rights, with Steill's consent, to Mr. Walter, before the Rebellion, under back-bond to hold count to Steill for what he should recover. Mr. James Smith, as donatar of the escheat, pursued Mr. Walter for £.539 Scots recovered by him of Robert Dean's effects.
The Lords found, That Mr. Walter, being creditor to the rebel before the Rebellion, and having obtained payment by virtue of the right from Cameron, whose assignation from the rebel was intimated before the Rebellion, he had right to retain in compensation of the sums due to himself pro tanto, and therefore preferred him to the donatar; albeit the translation from Cameron was not intimated to the representatives of Robert Deans before the decree of general declarator of the escheat; in respect the intimation of the assignation to Cameron effectually denuded Patrick Steill, and put the debtors in mala fide to pay him, who had only an action on the back-bond against Cameron to retrocess, with which the debtors were no manner of way concerned. Nor was there any necessity, for Cameron's translation in favours of Mr. Stirling to have been intimated, in order to denude the first cedent, but only to secure against Cameron's uplifting or assigning de novo; for the assignation to Cameron (though in trust), being transferred with the cedent's consent, was equivalent to a discharge of the trust, and an effectual conveyance to Mr. Stirling of the effects assigned to operate retention, how soon they came into his hand, against the donatar.
