Scottish Court of Session Decisions

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

Bishoptoun
v.
Kelso and Others

Date: 12 January 1672

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Robert Kelso, as liferenter, and John, his son, as fiar, having sold the land of Kelsoland to Bishoptoun, did take bond for the price thereof, to be applied, in the first place, towards the payment of such creditors, to whom he was bound as cautioner for his father. There being other creditors to whom he was not bound, who did arrest in Bishoptoun's hand; he did raise double poinding against the whole creditors, and against John Kelso, the son.

It was alleged for these other creditors, That the father, who was their principal debtor, having purchased these lands to himself in liferent, and his son in fee, with his own means and estate; the son being then in familia, and having no means of his own, his father's creditors might have affected the same by a declarator, to the effect that comprising, or other diligence, might be used against the lands, as if the right and fee had been taken in the father's person; so that the son could not thereafter dispone the lands, and, by applying the price thereof, prefer one creditor to another, as he pleased.

It was answered for the son, That, albeit the fee of the lands was purchased by the father's means, yet he thereafter becoming cautioner for his father, and these other creditors using no diligence against him nor his father, by intenting action or serving inhibition, he might lawfully dispone the fee of his estate for relief of these debts, for which he was cautioner, and prefer those to whom he was bound.

The Lords did sustain the bond, preferring John Kelso to these other creditors; and found, That he might take that bond for his relief of his cautionary; albeit it did give preference to those to whom he was bound, there being no legal diligence done against him to hinder him; as was found in a case betwixt Mr John Preston and Captain Newman, where the Laird of Craigmillar, having disponed his estate to the said Mr John, his brother, with full power to him to sell the same, and pay such creditors as he should think fit, the Lords did sustain his power to prefer such creditors, to whom he himself was bound as cautioner.

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