Paction by Declarators, Back-bonds, &c. relative to Personal rights; when real; when personal?
Maxwell v. Lord Harries
Date: 24 March 1630 Case No. No 20.
A singular successor to the creditor in a bond, was found not subject to a clause in it inserted for purposes merely personal.
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The Lord Harries being bound to one Maxwell by an heritable bond, in a sum of money, and to be paid upon requisition, which requisition was expressly contained in the bond, ought to be made by the advice of persons therein named, and no otherwise; this bond being comprised by a creditor of the said Maxwell, who required the Lord Harries to pay him, as compriser, succeeding in the said Maxwell's place and right, and thereupon the Lord Harries being charged, who suspended upon the clause in the bond, that requisition was not made by advice of the friends named in the bond, as ought to have been done, and without which he was not subject in payment;—the Lords found, that seeing this bond was comprised by the creditor of Maxwell, which compriser was become singular successor to her, that he was not subject to that clause, to make a requisition by the consent of these friends, who were adjoined to the personal requisition, which might have been made by that creditor, in case the right of the sum had subsisted and remained with her; for that cause being set down for personal respects to take away the power from the woman, to dispone or uplift the sum without the advice of these persons, could not go out of her own person to affect the singular successor, and to bind him to seek their concourse thereto, whereto she was tied; and it was not respected what the suspender answered, that the compriser could not have the right otherwise transmitted to him, than his debtor had the same herself, which being so affected to herself, behoved to remain so to every one claiming her right, osherwise that condition would be elusory, and was unprofitably adjected, for then she might have made one assignee thereto, and so if the condition should not bind every one who should obtain that right, the assignee, albeit to the debtor's own use, might frustrate the meaning of the bond, and, without the friend's advice, lift up the sum, and thereafter restore the same to her, to be used at her pleasure, which were against the intention of the bond; attour that clause is not simply conceived in favours of the creditrix, but it is also introduced in the debtor's favours, who possibly would not have given the bond otherwise, but with this express condition; notwithstanding of all which the requisition and charge thereon was sustained, but the execution was delayed to a term thereafter, against which the debtor might provide to pay the money.
Act. ——.Alt. Belshes.Clerk, Hay.
Fol. Dic. v. 2. p. 63. Durie, p. 514.
