Scottish Court of Session Decisions

Subject_1 COMPETITION.

York-Buildings Company
v.
The Duke of Norfolk

1752, Feb. 14, June 26.
Case No. No. 10.

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In 1727, certain trustees were infeft in the York-Buildings Company's estates in Scotland, for security of certain annuities for lives, and the bonds granted for them all contained in a schedule annexed to the disposition, which schedule mentioned the annuitants' names, and sums payable to them severally, but not the names of the nominees during whose lives the annuities were payable, whereof some were persons different from the annuitants who had right to them,—the annuitant choosing whomsoever he pleased. In 1730 the Duke of Norfolk became creditor to the Company by a lease he gave them of the Strontien mines, in consequence whereof he adjudged for great sums of money. As these annuities were assignable, many of them were assigned; and the assignees many of them gave up the old bonds to be cancelled, and took new bonds in their own names, and in many of these the persons for whose lives the annuities were to subsist were changed. The Duke pursued reduction of the trust-infeftment, and of the annuities, and objected to these new bonds granted after the infeftment. Drummore, Ordinary, gave several interlocutors;—against which the Duke reclaimed;—which brought on a hearing in presence, on which we pronounced the following interlocutor, that was this day signed:— “Find, that by the laws of Scotland, the creditors annuitants can have no real right in virtue of the trust-infeftment in the Company's lands and estates in Scotland, for payment or security of bonds granted by the Company after the date of the said infeftment; but in respect of the circumstances of this case, and that it appears that several of the creditors, unacquainted with the laws of Scotland, have erroneously given up to the Company the old bond, for security and payment of which the said trust-infeftment was granted, and which bonds had been duly assigned to them, and have in place thereof taken new bonds for the same annuities, in the names of the said assignees, in belief that their real right and security in the said lands and estates in Scotland was not thereby hurt or impaired, and as the pursuer, whose debt was contracted before making the said exchanges, has suffered no prejudice thereby, so he ought not to take any advantage by that error;—therefore find that the said annuitants who have delivered up old bonds prior to the date of the infeftment, upon getting new bonds in their own names, ought to be preferred and ranked upon the Company's estates in Scotland, as if they were still possessed of the said old bonds entire and uncancelled; but find that where the persons during whose lives the annuities in the old bonds were to subsist were different from the persons during whose lives the annuities in the said new bonds are granted, that in such cases, the annuities in the new bonds must cease and determine by the death of the persons named in the new bonds, and that neither the Company, nor their estates in Scotland, are liable for the same, albeit the persons named in the said old bond shall be still living;—but find that the said preference upon the Company's lands and estates in Scotland does cease and determine by the death of the persons during whose lives the said annuities were granted by the old bonds, although the persons named in the new bonds shall happen to survive them, and remit to the Lord Ordinary to proceed accordingly.”—This interlocutor was agreed to unanimously;—and I mentioned to them two precedents for it pretty parrallel, (but which were not mentioned by the Bar;) the first observed by Dirleton, decision 240, February 5, 1675, Binnie against Scott; and 24th July 1713, Creditors of Achlossin competing. And the reason of the last part of the judgment, whereof the annuitants complained heavily, was that the Company could not be bound longer than they had bound themselves to the defenders, that is, for the lives of the nominees in the last bonds. No doubt, several of these must be already dead, and the annuity thereby at an end before this dispute happened; and we could not make these revive, though the nominees in the first bonds were still alive; and on the other hand we could give them no preferene but upon the footing of the first bonds, or as it is expressed in the interlocutor, as if they were still possessed of the old bonds; and upon the footing of these bonds they could have no preference after the death of the nominees in them. 26th June 1752, The Lords after long reasoning altered, and found these new bonds cannot be ranked upon these estates, as the old bonds would have been.