Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

The Marquis of Queensberry and Others, Creditors of Douglas of Monsual or Mouswell,
v.
Mrs Elizabeth Douglas and the Children, &c

1682, 1683, 1684, 1688, and 1694.

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1682. December 20.—The Marquis of Queensberry, Treasurer, and the other creditors of Douglas of Monsual, their reduction against the children of Monsual, and Mrs Currier, was this day advised.—The Lords reduced and loosed their own decreet in foro, dated the ——— day of December 1679, preferring the children, after a most solemn and contentious debate; and turned it to a libel: because the probation was disconform, and not applicable to the interlocutory terms in the act of litiscontestation; which bore, That it was found relevant for the children to prove that their father had a sufficient visible estate standing in his person, the time of his granting their bond of provision; whereas the probation run only upon an estate, which both their father, the son, and his father, the children's goodsire, had betwixt them; and that not so much at the time of exercising the faculty, by granting the said bond of provision, which was the time principally to be considered for his solvency, but more at the time of the reservation, viz.—his son's contract of marriage, in which it was reserved: and, therefore, found that it was not proven that the son had a competent and opulent estate the time of granting the bond of provision; and so reduced their former decreet, and the bond of provision, on the Act of Parliament 1621, as done in defraud of creditors: and thought, albeit it were unjust to hinder parents, not inhibited or at the horn, who had fortunes, to provide their children in moderate provisions, (else all commerce would be stopped,) yet when eventually it happened, that either his creditors or children behoved to want, it were much more reasonable the children should be losers; and here, in such a case, there needed not be fraus in consilio, but only in eventu, ubi titulus erat mere lucrativus; as even was found in the actio Pauliana revocatoria, introduced by the Roman law; where, in donations, the receiver, though not particeps fraudis, was put to restore to creditors; but, in casu onerosa, they required expressly animum fraudandi, and that the receiver should be doli conscius.—See Durie, 6th March 1632, Garthland, et Bouritii advocat. cap. 34, where, both from the civil law, and the customs of Friezland, the reviewing of decreets is allowed, vel per modum revisionis vel supplicationis, intra biennium;—Though this renders the sentences of the Lords of Session very ambulatory, and an uncertain security to the people; and derogates much from their sovereign authority, which should terminate somewhere, and not review their own sentences after they have decided fully both on relevancy and probation; especially it being prohibited to quarrel their sentences upon iniquity, or super eisdem deductis, or super competentibus et omissis; and publicatio testimoniorum being refused by our custom, otherwise immortales erunt lites et nullus erit jurgiorum finis.—Vide supra, 8th December, Paton; and Durie, 20th January 1631, Gordon; where the Lords religiously adhered to decreets in foro. And, on the 30th June 1675, in a question betwixt Stewart and Clark, the donation to a wife, otherwise provided, was sustained, because the husband had then an opulent estate, and was not obœratus.

As to the wood of Monsual, valued to 10,000 merks, “The Lords found it could not be reckoned the father's estate; because, he being only liferenter, omnis usus fructus est salva rei substantia, and silva cœdua est pars fundi, and belongs to the fiar; and the most the father could claim of it, would only be ad usum necessarium prœdii et familiœ suœ et colonorum; or if it was divided into haggs, such a proportion of it as was cut down in his lifetime.”—L. 30. D. de V. S. —Some imagined a difference betwixt a relict liferentrix, and a father, in peculio profectitio, disponing the fee with reservation of his own liferent, cujus usufructus debet esse pinguior. Sir George Lockhart hectored that doctrine of visible and invisible estates, and of estates accessible to creditors for the subject of their discussion, and estates inaccessible by liferents and other incumbrances; and that creditors ought not to be put to the expiscation of their debtors' conditions, on precise arithmetical proportions, and on such fantastical airy distinctions, else their condition should be miserable. And Sir George further affirmed, it was against all law and the customs of other sovereign judicatories abroad, that the Lords of Session should tie up themselves not to review their own decreets upon iniquity, or mistakes and errors in advising relevancies or probations, or in misapplying them, or in wrong extracting; and that it was no reproach to them so to do; seeing humanum est errare, et satius est id corrigere quam in eo perseverare: and some made a subtile distinction, of committing iniquity, or falling by inadvertency into an error; and that the Lords' sentences might be reviewed on this last head, though not on the first. Sir George further moved and proposed, that the Lords, by an act of sederunt, might bring back the stream of their fluctuating decisions to the current of the Act of Parliament 1621, that creditors might not be left arbitrarily loose.

Vol. I. Page 202.

1682. March 28.—Mrs Douglass, and the bairns of Monsuall, against the Marquis of Queensberry, and the other creditors, (vid. 20th December 1682,) reported by Castlehill. The Lords admitted to their probation what estate old Monsuall had the time of the bond of provision; but found the condescendence on the houses in Dumfries not sufficient; seeing they are presumed to be only in his person in trust, and that they were possessed by another's creditors.

Vol. I. Page 230.

1683. March 14 and 15.—The Lords, having advised the probation led in the cause of the Marquis of Queensberry, and the creditors of Monsual, against the bairns of Monsual, mentioned 20th December 1682,—they found no visible affectable estate in the father's person, at the time of his granting the bond of provision to his bairns, proven; and therefore preferred the creditors.

Vol. I. Page 281.

March 20.—The High Treasurer, and other Creditors of Monsuall, against Mrs Douglas and the children, mentioned 14th current, was again debated and decided;—preferring the creditors; and finding there was no such visible and accessible estate proven to be in the father's person, at the time of his granting the bond of provision to his bairns, as might sustain this bond; and, if there were any, it was juster that his children should be put to affect it and seek it in than his creditors, who did not know his condition so well.

Vol. I. Page 283.

1688. July 4.—The Children of Mouswall's reduction, against the Duke of Queensberry, of his decreet reductive, mentioned 20th March 1684, was advised. The Lords had ordained the pursuers yet to condescend and prove a clear visible estate which the father had at the time of the faculty; and Queensberry to condescend on the debts he has paid, and the eases he got: And, accordingly, they having repeated the probation formerly adduced, the Lords, on the 20th July, found it was all one whether the visible estate was in the father's person or the son's; because the son, prœceptione hœreditatis, was liable: but found the wood, the personal estate and debts, and the lands about Dumfries, were not such a clear and accessible estate, or such a subject of discussion, as that creditors were obliged to rely on; and that the value and existence of the estate must not be considered as it was at the time of the contract of marriage or bond of provision, but as it stood when they who were only cautioners were distressed, and made payment; they not being so immediately concerned till then. Thus Mrs Douglas gained the first point, and lost the rest.—And, to clear this point for the future, the President was resolved to make an act of sederunt.

Vol. I. Page 509.

1694. February 6.—The Lords advised the last point of the debate between Elizabeth Douglas, and the other Children of Monswal, and the Duke of Queensberry,—Whether the payment of the price of the lands made by him to the several creditors was bona fide, and ought so to exoner him as that she must recur against them;—or if the Duke should be personally liable to her, and have repetition against them upon the warrandice of their several dispositions to him. And the Lords now altered their former interlocutor, finding she had immediate access against the Duke for that part of the price whereto she was preferred; and found the Duke was in bona fide to pay: seeing he had raised a multiplepoinding, and was preferred for his own debt; and the rest of the creditors were ranked, and he had paid them conform to their ranking, and this decreet was not quarrelled for some time. And the case of Montgomery contra William Wallace, 19th July 1662, was cited: and the Lords remembered, that last winter, in James Reddock's pursuit contra the Lady Rothes, the Lords sustained voluntary payments, in the terms of their back-bond, as bona fide made.

Vol. I. Page 601.