Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Rattrays v. John Drummond of Newton
Date: 6 December 1698
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Chalmers, elder and younger of Milnehorn, sell their lands to one Crighton; and the price being a sum secured by a wadset on the Earl of Strathmore's estate, they take their right to it in John Drummond's name as their trustee. Thir Rattrays being creditors to Chalmers, the father, arrest in John Drummond's hands; and, in the pursuit to make forthcoming, he depones he was only a confident and interposed person, and had applied the price for payment of debts wherein Chalmers of Milnehorn, younger, was bound as cautioner for his father.
Alleged,—This was an unlawful gratification, preferring one creditor to another; and that, after their arrestment, he should not have paid, but suspended on double poinding.
Answered,—This falls not under the Act of Parliament 1621; for the son, whose trustee he was, being in the fee of the lands, as he had validly disponed, so the trustee might warrantably apply the price towards the payment of his debts, and was not obliged to notice the father's creditors, who was only liferenter.
The Lords thought John Drummond, paying after arrestment, had done it on his peril; but that it was still competent to him to defend it as warrantable in the same manner as if the money were yet in his hand and the father and son's creditors were competing, who had the best right to it; and seeing that the son was fiar, and no creditors were paid, but such as had the father bound as well as the son, they found the payments warrantable, and assoilyied John Drummond from Rattray's reduction and process of forthcoming.
