William Fergusson, Esq. of Auchinblane v. Mr. William Maitland, Minister, James Rob, Merchant in Edinburgh, and Isabel, his Wife [1732] UKHL 1_Paton_73

UKHL
William Fergusson, Esq. of Auchinblane v. Mr. William Maitland, Minister, James Rob, Merchant in Edinburgh, and Isabel, his Wife
[1732] UKHL 1_Paton_73
A deed reduced upon the head of fraud and circumvention, which were chiefly inferred from the facility of the granter, in conjunction with the very disadvantageous terms of the transaction.

Subject_ Costs —

L.60 given to respondents.

[Fol. Dict. Vol. I. p. 337. Mor. Dict. p. 4956.]

Fergusson obtained decree against John Colville, surgeon in Mauchline, as cautioner for a debt of 2000 merks. Upon this decree Colville was charged on letters of horning, and a caption executed against him. Thereafter, he assigned over to Fergusson, several heritable debts, amounting in all to 4000 merks, (which, however, according to the statement of Fergusson, were very much incumbered with prior claims and arrestments.) Fergusson gave a back bond, declaring these assignations to be only in security of the debt sued on.He next arrested, in the hands of Maitland, (the respondent) some funds belonging to Colville, and raised an action of forthcoming, in which, by a decree arbitral, Maitland was directed to pay to

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Of this date, he obtained from Colville an absolute disposition of the above debts, &c. and at the same time he executed a back bond, declaring that this disposition was only granted in security of a debt of L.236, 7s. 5d. sterling, due by Colville to him, for which sum Colville also granted his bond.Afterwards Colville was reduced to great straits for the means of subsistence, of which Fergusson took advantage to obtain from him a discharge of the above-mentioned back bond; by which deed he discharged all claims which he might have against Fergusson, and further bound and obliged himself “to assign and dispone to the said W. Fergusson any debts or sums of money that he can discover to be due to my said father, by whatsoever person or persons, not exceeding the sum of one thousand merks, for which I have instantly received a full value, renouncing all exceptions to the contrary,” &c.At the time of giving this discharge, no account was made up between them nor any money paid, but Fergusson gave him the following note:
“I promise to pay to John Colville, surgeon in Mauchline, the sum of four hundred merks Scots money, at the term of Martinmas next to come, secluding assigns, and only payable to himself on life , for value received of him, and notwithstanding of the term of payment, to advance him of the aforesaid sum, what is necessary for out-rigging him to go abroad to the army.”

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Colville died in great penury, but before his death, he executed a general disposition, subject to revocation, in favour of Maitland his uncle, and Isobel Campbell his sister, of all debts, sums of money, &c. which might be owing him at his death, and particularly assigning the above back bond.In virtue of this disposition, these parties raised an action for reducing the foresaid discharge on the head of fraud and circumvention, which they inferred from the situation in which Colville was at the time when the several transactions between him and Fergusson were entered into, and from the nature of the securities which were given to Colville in consideration of them.Feb. 1727.July 21.Feb. 13, 1729.A condescendence having been given in, the Lord Ordinary “found the reasons of reduction not relevant, and assoilzied,” &c. But upon a petition to the whole court, their Lordships “before answer, allowed a proof of the several allegations, and granted commission to examine witnesses in the country upon interrogatories given in for the pursuers.” The proof having been led and advised, their Lordships “reduced the discharge, and found that both parties are in the same state they were in before granting thereof.This interlocutor was afterwards adhered to, and it was further “found that the bond of L.230, 7s. narrated in the cancelled back bond, dated in January, 1725, is to be held as a good and subsisting bond, though it doth not now appear, and also that the cancelled back bond is to

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Thereafter, by sundry interlocutors, the defender was ordained “to give in a condescendence how and in what manner the sum of L.236, 7s. in the bond was furnished to Colville, so as to become a debt against him;” and further, “to give in an account of his intromissions with Colville's effects, or of any payments made to him since the date of the said bond.”Entered Jan. 28, 1730. Amended April 6, 1731,The appeal was brought from two interlocutors of the 13th February, 1729, and from the interlocutors of the 3d, 15th, 22d, and 26th July in the same year.Pleaded for the Appellant: —There is not the least evidence of fraud or circumvention, without which a bargain, however disadvantageous, cannot be voided. Neither is there any proof of such weakness on the part of Colville, as should incapacitate him to transact with the appellant, as he was in the habit of doing with other persons. Moreover, even were facility proved, it is not per se a ground for reducing a contract without some evidence of circumvention.Pleaded for the Respondents: —Generally, that the fraud and lesion were abundantly proved by the circumstances of the case, as well as the facility of Colville by the evidence of several witnesses.Judgment April 5, 1732.After hearing counsel, “it is ordered and adjudged, &c. that the appeal be dismissed, and that the several interlocutors therein complained of, be affirmed; and it is further ordered, that the appellant do pay, or cause to be paid to the

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Counsel: For Appellant, Dun. Forbes, and C. Talbot. For Respondents, P. Yorke, and A. Hume Campbell.