Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

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v.
David Maule

Date: 10 February 1743

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[C. Home, No. 222.]

Mr Hepburn of Keith, having put up his estate to voluntary sale and roup, did, by a letter under his hand, empower David Maule to appear at the roup, and bid to the extent of twenty seven years' purchase, and promised, in case the estate should fall to him, to relieve him, and take it off his hands.

Accordingly David Maule did appear at the roup, and was the highest bidder ; after which, a creditor of Mr Hepburn the seller arrested in Mr Maule's hands, and pursued a forthcoming. Mr Maule's defence was, that he was only a trustee for Mr Hepburn, who had bound himself to relieve him, and take the estate off his hands in case he carried it, so that he was not debtor to Mr Hepburn for the price, and consequently the arrestment was inept: which the Lords sustained; although they did not all approve of the practice, and thought that it was contrary to good faith not to let the highest bidder carry off the estate.

Afterwards the arrester sought the expenses of the arrestment and forthcoming from David Maule ; and the Lords were willing to have granted them, but it appeared that he knew, before the arrestment, that Mr Maule was only a Trustee.