Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
John Stewart of Blackhall v. Thomas Macgowan and Others
Date: 19 June 1707
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Mr John Stewart of Blackball against Thomas Macgowan, provost of Irvine, and Others”. In the ranking of the Creditors of Cuningham of Corshill and Ro-bertland, Blackhall craved preference, on this ground, That he, being cautioner for them, had got a disposition for his relief, and thereupon stood infeft long-before any of the other creditors had done diligence.
Alleged for the Adjudgers,—That the disposition produced bore this express clause,—That the granting thereof should be nowise derogatory nor prejudicial to any former rights granted by Corsehill to his lawful creditors their just and true debts owing by him to them;—which being the precise words of the reservation, sufficiently saved all the true and lawful creditors, though only secured by personal bonds.
Answered,—The said clause could never be strained to that sense; but allenarly reserved the real rights, and creditors to whom Corsehill had given heritable bonds and infeftments prior to this disposition; else Blackhall got nothing at all; and verba debent aliquod operari. And how idle would it have been with the one hand to get a security for his cautionaries, and with the other to bring in all the creditors pari passu with him; which rendered his right not worth a sixpence: and the sense of the words can go no farther, declaring this right shall not prejudge the rights of other creditors. These words must be understood of rights of the same kind and nature in both parts of the clause, viz. of real rights, that they may be homogeneous and analogical to one another.
Replied,—This, being a right granted by a nephew to his uncle, must be strictly interpreted; especially contra proferentem, qui poterat legem apertius di-cere; and there is no taxative word restricting it to real rights: and it would have been superfluous nonsense to have done it; for prior real rights were secure however, and needed no such clause in their favours, being preferable without it. And Right is a word applicable to both real and personal rights; it is the genus, and these two branches are the species into which it is subdivided. And jus, in the common law, arises tarn ex obligatione quam ex dominio,—obligation being defined to be vinculum juris quo necessitate astringimur. So the word Right comprehends personal creditors as well as real; and Blackhall has understood it so, else what needed he adjudge for thir very same debts for which he got this infeftment of relief. And to make this subsist, is to ruin a multitude of poor innocent creditors, who, by this seclusion, will not get a farthing.
Duplied,—Nothing hinders a creditor having a valid security to lead an adjudication ad majorem cautelam.
Some of the Lords thought, however, Blackhall might design a preference by obtaining this right; yet Corsehill has been resolved to secure his creditors, that it might not prejudge them; and so, by a plurality of eight against seven, the Lords found the clause not taxative, but behoved to extend even to the personal creditors. Many thought this was a stretching the clause beyond what it could bear, though it had the favour of bringing in the creditors pari passu.
