Scottish Court of Session Decisions

Subject_1 TRUST.

James Maxwel
v.
Adam Maxwelv

Date: 15 November 1667
Case No. No. 8.

A trust-disposition of land having been granted to prevent the rigour of creditors, the person entrusted was found to have no right, in consequence of assignations he had taken, to receive more of the debts compounded for than he had truly paid.

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James Maxwel, and the umquhile Lady Hiltoun, his spouse, having disponed their land to Adam Maxwel, James now pursues a declarator of trust, whereupon the Lords formerly ordained count and reckoning, that it might appear what Adam had expended upon the account of the trust. In which account Adam gives up certain bonds by James, whereunto he had taken assignation, against which, he could allege no more than what he truly paid out, in respect the time of the assignation he was entrusted by the pursuer. The defender alleged, Non relevat, unless it were alleged he was entrusted to compone for the pursuer's debts; but if it was only a trust of his land, and not a general trust of all his affairs, it could not reach these bonds; and albeit, upon the account of friendship or charity, the defender might be desired to take no more than he gave, there lies no obligation, in law or equity, upon him so to do, but he may demand what the creditors, his cedents, or any other assignee, might demand. The pursuer answered, That the intent of his trust in his lands, being to preserve him from the rigour of his creditors, it was against the trust to the trustee to use the same rigour himself.

Which the Lords found relevant, and ordained Adam only to get allowance of what he paid out.

Stair, v. 1. p. 485.