Right in security is, in general, not broader than the real debt at the time of granting the security.
Janet Inglis v. the Earl of Murray
Date: 25 January 1699 Case No. No 24.
Whether a creditor, in right of his security, candraw more than the sum secured?
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Janet Inglis, relict of A. Charters, and the Representatives of John Macmoran, competing for the right of 5000 merks due by the Earl of Murray to umquhile Thomas Inglis, her brother, Janet claimed the same on this ground, that Isobel Macmorran, her mother, being melancholy and fatuous, there was a gift of curatory taken to her brother John Macmorran for managing her affairs, and she being provided to a jointure of 1800 merks, her name was in the liferent of bonds for 28,300 merks, so there being 1700 merks behind to complete the stock of 30,000 merks, her son Thomas Inglis gave her a bond for paying her L. 68 Scots yearly as the annualrent of the said 1700 merks, to complete her jointure, and for her better security assigned her to as much of the principal sum of 5000 merks due to him by the Earl of Murray as would pay the by-gones of the L. 68 of deficiency, then amounting near to L. 1200 Scots; and there was likewise arrestment used by the curator in my Lord Murray's hands, and a decreet to make forthcoming: And Janet having confirmed executor ad omissa to her mother, and pursued before the Commissaries of Edinburgh James and Bessie Macmorran's children to Bailie Macmorran the curator, and Dr. Nisbet husband to the said Elspeth, the Commissaries found, by the said Thomas's assignation she had right not only to affect the Earl of Murray's sum with L. 1200, as the bygone rests of the annnalrent of the 1700 merks due to her mother preceding her decease, but likewise with the annualrent of that sum over since her death in 1678; and ordained John Macmorran the curator's representative to transmit as much of the Earl of Murray's sum as will extend thereto; because her mother being assigned in corroboration and further security to so much of that sum then bearing annualrent, she must have the annualrent effeiring thereto, as accessorium to her right. And further urged, that if her mother's curator had then uplifted the bygones, they would have been lent and become a principal sum; likeas, ratione officii, he as curator was bound once during the curatory to have gathered in her annualrents, and stocked them into a principal to bear annualrent a finita curatela, even as the law appointed with minors' money; pecuniæ pupillares non debent esse otiosæ, sed fænori exponendæ; and the curators to ideots, or furious persons, are under the same obligation, seeing pupulli et furiosi aquiparantur in jure quoad their privileges. The Representatives of Macmorran, the curator, answered, They yielded preference to the said Janet quoad the bygones preceding her mother's death, that these would affect the Earl of Murray's sum; but the usara usurarum was unreasonable, 1mo, Because anatocismus is condemned by all laws; 2do, If the curator had pursued Thomas Inglis for these bygones, he had a good defence, that as he was debtor, so he representing his mother, he became also creditor as to one half proyrio jure, and to his sister Janet's half by virtue of her renunciation and acceptation of a tocher in satisfaction by her contract of marriage, and so confusione tollebatur; 3tio, Tutors are bound to accumulate and stock their pupils' annualrents in fine tutelæ, but not a curator; 4to, Law does not admit extension of such exorbitant privileges, so as to argue from minors' curators to those of furious persons, seeing leges exorbitantes a jure communi non sunt extendendæ; de persona in personam, nee de casu in casum. The Lords abstracted from the obligation to employ as curator, but found Janet Inglis had right to the annualrent of the L. 1200 of bygones due to her mother, and that from her decease to this present, in regard her mother and her curator were assigned to the Earl of Murray's sum bearing annualrent for her security, and so the annualrent followed as a necessary consequent.
Fol. Dic. v. 2. p. 355. Fountainhall, v. 2. p. 37.
