Scottish Court of Session Decisions

Subject_1 JUS QUÆSITUM TERTIO.
Subject_2 SECT III.

Clauses in Deeds in favour of third parties.

Mr William Carmichael Advocate,
v.
George Wilson of Sands

Date: 10 February 1714
Case No. No 18.

Found in conformity with No 16. and No 17. p. 7740.

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Mr George Lesly donatar of the escheat of Mr Robert Craig of Riccarton, assigned the gift to Alexander Glass, writer to the signet, upon his back-bond, declaring the assignation to have been granted to him in trust for the behoof and relief of Sir Robert Forbes, Alexander Deuchar, and Mr James Oliphant of Langton of some particular debts mentioned in the back-bond for which they were cautioners for Mr Lesly. Mr William Carmichael having afterwards obtained a gift of the escheats of Mr Lesly, Sir Robert Forbes, and Alexander Deuchar, insisted on a special declarator against Alexander Glass to denude in his favours of the trust. Compearance was made for George Wilson, who craved preference, upon this ground, that he, as cautioner for Sir Robert Forbes and Deuchar, had paid to Lothian one of those debts for the relief whereof the assignation was made to Mr Glass. So that all the security in their persons for relief of that debt accrued to him who paid ex mandato, and in name of Sir Robert Forbes and Deuchar, just as if they had paid it themselves.

Answered; 1mo, Sir Robert Forbes, or Deuchar had paid the debt, and were claiming preference; Mr Carmichael, as donatar to both their escheats, would be preferred on their preference; 2do, The privilege in the back-bond being personally conceived in favours of Sir Robert Forbes and Alexander Deuchar, it cannot be extended to other persons not therein mentioned; and, though Wilson, by paying the debt, became creditor to them, he hath no privilege but must come in among the other creditors conform to his diligence; because personal privileges quæ non egrediuntur personam are not extended to cautioners, L. 1. § 2. D. De constit. princip. And it was found in the competition of the Creditors of Langton, that even a public infeftment of relief to a cautioner did not accrue to the creditor for whose debt it was granted, but was so personal to the cautioner that he might renounce it at his pleasure. Stair, lib. 2. tit. 3. § 27. See No 11. p. 33.

The Lords found that Alexander Glass's back-bond, binding and obliging him for relief and re-payment in favours of Sir Robert Forbes, Langton, and Alexander Deuchar, and not in favours of the creditors to whom they stood engaged as co principals or cautioners; Mr William Carmichael, as donatar to the escheat of Mr George Lesly, Sir Robert Forbes, and Alexander Deuchar, has right to Glass's obligation in the said back-bond, and not Wilson of Sands, who came in place of Mr Lothian, one of the creditors, proportionally to his interest.

Fol. Dic. v. 1. p. 512. Forbes, MS. p. 25.