Contravention of a deed by collusion of the depositary.
Elizabeth Lauder v. Katharine Brown, and her Husband
Date: 28 January 1724 Case No. No 39.
Found that the depositary of a bond, could not propone compensation, upon a bond for aliment, which, while in the knowledge of the debt in the bond entrusted to him, he had taken in contravention of it.
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The Representatives of William Brown were pursued by Elizabeth Lauder, as executrix confirmed qua nearest of kin to Mary Seton, for payment of a bond for 500 merks, granted by William to the said Mary, dated 23d of March 1706.
In this bond it was expressly provided, “That the said Mary Seton should not have it in her power to uplift or assign the foresaid sum, or to contract debt, or do any other fact or deed that might affect the same, without consent of David Forrest and William Lauder,” &c. And for Mary Seton's further security, the bond was depositated in the hands of the said David Forrest.
The defence proponed was compensation, founded on a bond for L. 450 Scots, granted by Mary Seton to the said Forrest, and by him assigned to the defenders; which bond bore in its narrative to be for aliment furnished to the said Mary Seton by Forrest and his mother, for several years preceding 1691.
It was answered for the pursuer, That since Forrest was in the knowledge of the qualities in Brown's bond, and was entrusted with it for Seton's behoof neither did he pretend any claim of aliment at the time of granting it, the compensing bond was an undue imposition on Mary Seton, and could not be regarded.
The Lords found, that the bond bearing the qualities therein mentioned, the depositary could not take a bond in contravention thereof for aliment preceding the bond.
Reporter, Lord Cullen.Act. Ja. Boswell.Alt. Ad. Watt.Clerk, Gibson.
Fol. Dic. v. 4. p. 24. Edgar, p. 9.
