Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

Robert Brown
v.
The Heirs of Andrew Bryson

Date: 26 June 1666

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Robert Brown having obtained decreet, before the commissaries of Edinburgh, against Mary and Anna Brysons, as executors to Andrew Bryson, their father, for payment-making to him of the sum of 2500 merks Scots, addebted by the deceased father to him; and having arrested the said sum in the hands of Alexander Bruce of Broomhall, whom he now pursues for making forthcoming:—

In this process compearance is made for Margaret Bryson, and alleges, She must be preferred to the’ said Robert, as having only right to the foresaid sum; in so far as, in the bond granted by Broomhall to her father, it was expressly provided, that, failyieing of her father by decease, the money therein contained should be paid to her, conform to the substitution.

Whereunto it was replied by the said Robert Brown, that the foresaid substitution and provision is null, and falls within the compass of the Act of Parliament 1621, as being a provision by a father in favours of his own daughter, in prejudice of him, an anterior creditor; whereupon he has reduction depending.

Whereunto it was duplied, That the provision could not be reduced, unless the said Robert would allege and prove that the father, Andrew Bryson, was bankrupt.

The Lords preferred the creditor, Robert Brown, to the bairn whose name was inserted in the bond; and found, That a father cannot provide his own children to the prejudice of lawful creditors; especially in this case, where the ground of the debt was prëxisting the granting of the bond, albeit it was not constituted by a decreet-arbitral till a year after. &c.

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