Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Alexander Mercer
v.
Gordon of Tullichandie

Date: 6 December 1671

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There being a wadset, granted by Seaton of Shethine to William Gray, provost of Aberdeen, of the lands of Meldrum, redeemable upon payment of the sum of 4000 merks; as likewise, Mr James Skein did give a bond of corroboration, but suspended all requisition until some years thereafter; at which time Tullichandie did grant a new bond, whereby he became obliged, that, in case two terms should run into the third unpaid, that then he should pay the sums contained in the wadset, he being assigned thereto for relief. Whereupon the said Alexander Mercer, as having right from the Earl of Haddingtoun, who had a gift of ultimus hæres to the said William Gray, did pursue the said Tullichan die upon that ground,—That there were three terms' annualrent outrun.

It was alleged for the defender, That there never have been intimation made to him till long after three terms were outrun; and that, in the meantime, the debtor becoming irresponsal by the diligence of other creditors: whereas William Gray, the wadsetter, had not so much as taken infeftment, nor did intimate to Tullichandie that he was not paid of the annualrent, until many years thereafter, that other creditors had obtained themselves infeft upon their comprisings; and so it was his own fault he was not secured; and, through his negligence, any assignation he was to make to the wadset and clause irritant, was altogether ineffectual.

It was replied,—That the wadsetter, having secured himself by this bond of corroboration, which was in place of a sufficient cautioner for his debt, he was not obliged, in law, to be at the expenses to take infeftment, nor to do diligence against the principal debtor; but Tullichandie ought to have looked to his own relief; and the irritant clause, being committed by two terms running in the third, he ought to have inquired if payment had been made, and, in the case of not payment, should have satisfied the debt, and acquired an assignation to the wadset.

The Lords did repel the defence; and found, That Avilliam Gray, the wadsetter, was not obliged to do diligence against the debtor, nor to have taken infeftment, whereupon he might have been preferred to all other creditors,—he being in the case of a creditor who had secured himself by sufficient caution, whereupon he may rely so long as he pleases; and so it is not liable, upon that ground, that the cautioner is prejudged by suffering others to do more timeous diligence; unless the defender could allege that William Gray had fraudulently abstained from doing diligence, of purpose to prefer others.

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