Scottish Court of Session Decisions

Dobbie bought from Duncanson, in October 1870, certain house property in Glasgow. Under the missives of sale it was stipulated that, “it being understood that there are bonds to the extent of £12,000 sterling over these properties, and which are supposed to remain on the security thereof, I hereby bind and oblige myself to pay you the sum of £4000 sterling, and to free and relieve you of the payment of the said sum of £12,000, making the price, as above stated, £16,000 sterling.” About six days before Whitsunday 1871 Duncanson demanded to be relieved forthwith of his liability under the bonds by Dobbie's paying the bondholders, or him, or having himself made, habili modo, debtor in the bonds. This being refused, he raised a summons of relief, and, on the dependence of the summons, arrested the half-year's rents in the tenants' hands two days before Whitsunday. The summons was served on Whitsunday. The half-year's rents amounted to about £570, and the interest on the bond and feu-duty to about £320. Dobbie's law agents wrote to Duncanson that, “in order to save loss, we propose that you should concur with us in the appointment of a respectable house-factor to collect the rents falling due at this term; from which rents he should pay the present term's feu-duty and interests, and thereby so far relieve your client of liability under the bond—the balance of the rents to be consigned by him in bank, there to remain as a surrogatum for the sums arrested, subject to the orders of the Court, in all respects in the same way as if the rents had remained in the hands of the tenants.” As Duncanson refused to agree to this proposal, Dobbie presented a petition for loosing of the arrestment, and prayed they should be loosed simpliciter because of his offer to have a factor appointed, and as none of the bondholders had required payment of the bonds, and the security of Duncanson was therefore unaffected. He also urged that several of the tenants were leaving to avoid paying their rents, and that he was not bound to pay the bonds unless the bondholders demanded payment of Duncanson. He therefore suggested that a judicial factor should be appointed. Duncanson pleaded, that as he was personally liable under the bonds he was entitled to relief—especially as further securities had been effected on the buildings—and that, though consignation was a proper course, the interest and feu-duty should not be deducted. He opposed the appointment of a factor, and urged it was not competent for the Inner House to make such an appointment, no action being actually in dependence, but stated he was willing that the arrestments should be loosed on the petitioner's getting him relieved of liability under the bonds, or finding caution to a satisfactory amount, or consigning the sum of which relief was sought, with expenses.

Shand and Lorimer for Dobbie.

Balfour and Lees in answer.

At advising—