Scottish Court of Session Decisions

Subject_1 TRUST.

Representatives of Lord Bowhill
v.
The Creditors of Gala

Date: 21 February 1724
Case No. No. 34.

Action against an heir to execute a trust.

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The affairs of the late Sir James Scot of Gala falling into disorder, it was thought convenient to take out a gift of his single and liferent-escheat in name of Lord Bowhill, one of his creditors; which gift, besides the debt in the horning whereupon it did proceed, was burdened with a considerable annuity for the maintenance of Sir James and his family, and likewise with the donatar's own debt; and as to the residue, backbond was granted in Exchequer in the usual way, for the behoof of the other creditors. After the Lord Bowhill's death, which happened anno 1714, his representatives insisted in a process of exoneration, as to this right of trust; concluding, “That it should be found and declared, that the said donatar and his representatives were only accountable for what accrued from the gift during the donatar's life:” And this, notwithstanding that Sir James the rebel did many years outlive the donatar; and that the gift was to the donatar, his heirs and assignees; and that it was a proper trust granted for the behoof of others, as well as the donatar himself.

It was contended for the creditors, That this gift of escheat was by no means to be considered as a personal mandate, or trust of such kind as to end with the mandatar, where the integrity and sufficiency of the mandatar is the principal thing in view. Here it was of no import to the creditors in whose person the right did subsist. It was enough to them if the donatar, or such who came in his place, were responsal. This right is a plain conveyance from the crown to the creditors, and others, converted into one man's person for the behoof of all; which was a necessary expedient for the better executing the right: And nobody can doubt, in the case of any conveyance to a person, his' heirs, and assignees, of a common subject for the utility of all concerned, but that such conveyance being once accepted, must remain a charge upon the accepter, his heirs and representatives, till the end and uses for which the same was granted be fully accomplished. 2do, Admitting that the donatar could have relieved himself of the burden of executing the gift; that could only be done by a due notification to the creditors, while matters were yet entire: But it is submitted if this can now be done, after the profits of the said liferent-escheat have perished, or been diverted to other purpose. The pursuers neglecting the proper notification to the creditors, the creditors rested satisfied, that they were going on to perfect the work begun by their predecessor; they trusted to this, and most justly: The pursuers had their choice to prosecute the administration of the gift, or to notify to the creditors their refusal; and if neglectful, they forebore both, they alone can suffer by their neglect.

It was granted by the pursuers, That the gift of escheat was a mandate; but then it appears by the tenor of the back-bond, it was only in rem suam, or at most for such, with whose debts the gift was expressly burdened; but as to the creditors at large, whom the donatar neither did, nor was presumed to know, the donatar's representatives opponed the tenor of the back-bond; which says, “That the further benefit shall be converted and applied to the utility and behoof of the remanent creditors, at the sight of the Lords of Treasury,” which will never infer either trust or mandate, betwixt the donatar and the creditors. He is not even taken bound at the instance of the Treasury to administrate, the clause importing merely, “That the donatar should have no right to more of the escheat-goods, than to satisfy the debts in the gift; and therefore, in the case of his intromission with more, that he should be accountable to the Treasury.” The creditors might have applied for, and prosecuted a new gift of escheat, which would be a title of immediate intromission against the debtors, the preferable debts in the first gift being once satisfied; and even against the first donatar, if he had extended his intromissions beyond his title: But no action could be competent against the donatar himself, and far less now against his representatives, to compel them to continue their intromission beyond their own interest. Answered to the second, Since there is no title, there is no presumption that the donatar or his representatives would continue their intromission farther than in satisfaction of their gift: The creditors then had no reason to trust to this; and if they neglected to take out a second gift, the pursuers have their own argument to retort against them, That they alone ought to suffer thereby.

“The Lords found the representatives not liable in diligence.”

Rem. Dec. v. 1. p. 91.