Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Liddell of Loch, and Rig's Creditors, v. Alexander Gordon
Date: 29 November 1692
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Liddell of Loch and the other creditors of Rig, late of Carberry, against Alexander Gordon. This being a competition among the creditors, they objected against Gordon's adjudication, that it was null, because he had adjudged for L.200, contained in a bond, whereas there was a discharge posterior to that bond granted by Mr. George Gordon, father to Alexander.
Answered,—The discharge was general, and did not relate to this debt, which was but a cautionry of Rig's, and so could not comprehend it, being neither tractatum nor cogitatum. 2do, Esto it were paid, it could not annul his diligence, being led by his curators when minor, and who finding the bond among his papers, could not be answerable to their trust to neglect it.
Replied,—The discharge is very comprehensive of all he could ask or claim, and cautionry is a man's proper debt as well as any other; and they are all correi debendi to the creditor.
Duplied,—It might as well extend to cut off clauses of warrandice, relief, and others, which such general discharges are never found to do; as Stair observes, Tit. 11, Liberation from Obligations.
The Lords found it no nullity, but at most, that it would only restrict the adjudication. And having considered the discharge, they thought, that if this cautionry had been intended to be discharged, they would have specially mentioned it, and given an assignation to the bond for the cautioner's better recovery of his relief; and, therefore, found this discharge did not extend to, nor comprehend that cautionry, as not being then actum, or under view.
Then the other creditors objected against Ramsay's and Lewing's debts, being tochers in their contracts matrimonial with Rig of Carberry's two daughters, amounting to 3000 merks; that their father, Rig of Carberry, being then obœratus, and having nothing but 35,000 merks in Sir Adam Blair's hands, who bought the lands, this will scarce pay his other debts; and it is juster his children lose than his extraneous creditors.
Answered,—This would militate against a bond of provision granted by parents to their children. But here being a tocher, given in a contract of marriage, it is onerous both as to the children and the wife's jointure; and he not being then under diligence, he was not incapacitated, but might give suitable provisions to his bairns, not being extravagant; and his son-in-law seeing no incumbrance upon him might contract, and become as onerous creditors as an other.
Replied,—That there was no diversity between the case of bonds of provisions and tochers; and in the case of the creditors and children of Douglass of Monsuall, and many others, the Lords always required that it should be proven the father had then a visible opulent fortune, able to pay both his debts and bairn's provisions.
Duplied,—That Rig of Carberry had so; but ex eventu, by the liferentrix, her long life, the sum came to be exceedingly diminished, and unable to pay them all, which eventual loss was not considered in that case of Monsuall's.
The Lords found a contract of marriage in a better case than a bond of provision, and that there being no diligence, they were creditors as well as the rest, the portions being moderate.
