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Scottish Court of Session Decisions >>
William Scot v Douglass of Ardit. [1694] 4 Brn 221 (7 December 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040221-0502.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
William Scot v. Douglass of Ardit
Date: 7 December 1694
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William Scot, son to Bristo, against Douglass of Ardit, on the passive titles, for payment of sundry debts contained in his predecessor's bonds. Alleged,— Robert Douglass, my predecessor, disponed to James Scot, your cedent, his whole personal and moveable estate, under a back-bond, bearing, That he, being paid and relieved of all debts, either then due or which afterwards he should acquire, he should denude himself of the remanent benefit of the debts and goods assigned in favours of the said Robert Douglass, his other creditors; and if there were any superplus after that, the same was to accresce to the said Robert, his heirs and representatives; and ita est the sums and goods assigned were much more than would have paid all the debts due to James Scot of Bristo; and therefore he either is paid, or might have been paid. Answered,—William Scot, the pursuer, is content to hold account for all his father's actual intromissions, conform to his stated account left under his hand; but cannot be farther liable, especially for the debts in the account-book, whereof there was no instructions delivered to him. Replied,—Though James Scot's back-bond does not precisely tie him to diligence, yet, inest ex natura rei, when I assign you to my debts, and give up my account-books, it being a moveable subject, you ought not to suffer it to perish, but should have pursued the debtors in the countbook; and, if you had no other mean of probation, you should have referred the debt to their oaths, and constituted them one way or other; which I could not do, having denuded in your favours, and given up my books. Duplied,— The back-bond shows the assignation to the debts is not taken in satisfaction, or as donatio in solutum, but only in farther security and corroboration; and, if it be a mandatum, it is only in rem propriam, and noways a trust for the other creditors and debtor,—all the obligement being on payment; so that you should either have paid me, or required me to do diligence in order to my own payment.
The Lords thought the case deserved a hearing in their own presence, how far the nature of the thing could oblige James Scot to do diligence.
