Effect of the Backbond, which the Donatar was by statute bound to grant.
The Representatives of the Lord Bowhill v. The Creditors of Gala
Date: 28 February 1724 Case No. No 35.
A donatar granting back-bond to be accountable for the surplus, was not considered to be liable in diligence, as if he had been a trustee for the other creditors.
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The Lord Bowhill having obtained from the Court of Exchequer, to himself, his heirs and assignees, a gift of the single and liferent escheat of Sir James Scot of Gala, he granted backbond, by which he became obliged, after paying the expenses of the gift, and of a debt due to himself, and certain other debts with which the gift was particularly burdened, “to convert and apply any further benefit from the gift, to the utility and behoof of the rebel's remanent creditors, at the sight of the Lords of Treasury.”
The donatar having, in his own lifetime, intromitted with as many of the subjects falling under the gift as satisfied the primary and special ends of it, his representatives insisted in a process of exoneration, in which they craved, that it might be found and declared, “That although Sir James Scot survived the Lord Bowhill many years, yet they were only accountable for such of the subjects falling under the gift as were recovered during the donatar's life.”
It was pleaded for the Creditors, with whose debts the gift was not particularly burdened, That the gift in favours of the Lord Bowhill was not a mandate, or trust of such a kind as to terminate by the death of the mandatar; but was a conveyance from the Crown to the rebel's whole creditors, established in the person of one for the benefit of the rest; which being once accepted, must remain a charge upon the accepter and his representatives, till the ends and purposes for which it was granted were implemented.
It was answered for the pursuers; That though the gift was a mandate in trust, yet it appeared, by the tenor of the backbond, that it was only in rem suam, or at most for such creditors with whose debts the gift was expressly burdened; but could never be construed to infer either trust or mandate betwixt the donatar and the other creditors, so as to have obliged him to account to them without a warrant from the Treasury, though there had been more in the donatar's hand than answered the special ends of the gift. The known method in such a case was, that when the creditors apprehended that the preferable debts in the backbond were paid, they should have applied for a second gift, which would have entitled them to immediate intromission against the debtors; but the first donatar could only be bound to intromit with as much as would satisfy the debts particularly mentioned in the gift, and if he had intromitted with more, he was accountable to the Treasury.
The Lords found, that the heirs of the Lord Bowhill were not liable to diligence.
Act. Ja. Graham, sen.Alt. Ja. Boswell, & A. Hay.Clerk, Justice.
Edgar, p. 43.
*** This case is reported by Lord Kames, voce Trust.
