Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Elisabeth Nasmith v. Robert Malloch
Date: 13 January 1697
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Arbruchell reported Elisabeth Nasmith against Robert Malloch, in a reduction and declarator for count and reckoning. Alleged,—I cannot take a term at your instance, because you have no active title to pursue; your right being only a voluntary disposition from the Lady Bearfot, who had taken out a bonorum, and disponed her whole goods and estate to her creditors, and so could make no posterior disposition.
Answered,—She being infeft in a liferent of 2500 merks, the same was not able, at the time of her bonorum, to pay all her creditors; but she having lived now many years, Robert Malloch and her other creditors are more than paid; and therefore no law nor justice can debar her from her jointure; for if a bankrupt come ad pinguiorem fortunam, or fall into an adventitious estate, the same may be affected by the creditors, notwithstanding the former disposition on the cessio; which proves the said disposition is not given to the creditors in solutum, but only in securitatem of their debts; and, if all be paid, their interest ceases. But the Lords thought it unreasonable that one creditor should be singled out, and put to count, when he could not be sufficiently exonered, unless all the rest were likewise brought into the field; therefore they sustained the disposition ad hunc effectum, to cause the defender take a term; but declared he should not be obliged to take a second term, unless all the creditors were likewise cited by her; and granted an incident diligence for that effect. Some proposed caution might be found for his expenses, in case the pursuer succumbed; but the Lords could not oblige them to do the same.
