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Sir Robert Grierson of Lag v The Earl of Annandale. [1697] Mor 16185 (18 February 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor3716185-024.html Cite as:
[1697] Mor 16185
Sir Robert Grierson of Lag v. The Earl of Annandale
Date: 18 February 1697 Case No. No. 24.
Presumptions of trust.
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Sir Robert Grierson charges the Earl of Annandale for payment of £.10,000 contained in his grandfather's bond in 1654, with the annual-rents since. The defence was: The Earl of Hartfield, my grandfather, in security of that debt, gave Lag a disposition to his hail moveable estate; and Lag, of the same date, delivered the Earl a factory blank in the factor's name (which empowered the Earl to fill up any body he pleased in the blank) to intromit with the moveables; so that the factor Hartfield named, giving a receipt of as much of the moveables disponed as extended to the £.10,000 bond, was always master of extinguishing the said debt by payment or compensation, at his pleasure; which evinces the bond has been originally a trust contrived to palliate the Earl's moveables from poinding, who was then, (in Oliver's time) in bad circumstances with the Government, and under great debts, especially considering that none would then have lent him £.10,000 on his single bond; and it has been now latent these 40 years, and never entered into the list, either of Lag's debts or Annandale's; and when Lag claimed other sums owing him by this family, he never mentioned this. Some of the Lords were not fully convinced of the pregnancy of these grounds, especially seeing the bond was two years prior to this disposition and factory, and that there was long minority in Lag's family, and the bond was amissing, which occasioned its lying so long over: And it was moved, that trial might be taken before answer to expiscate what farther light might be given in this affair: But the plurality carried that the factory, with the negative presumptions of taciturnity, were sufficient to instruct this bond was merely a trust and contrivance to save the Earl's moveable from his creditors.
It is true the Lords have sometimes taken away bonds upon presumptions, as in the Duke of Hamilton's case against Cunninghame of Auchinharvie, and January 12, 1666, Executors of Stevenson against Crawford, No. 653. p. 12750. and in many others; yet the preparative of taking away a clear liquid bond in such a manner may be of dangerous consequence to the people's security.
Lag entered a protestation for remeid of law against this decree.
