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.
Dr Andrew Brown of Dolphington v. Sir Willam Menzies
Date: 1 December 1710
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James Clark of Wright's-houses, being under incumbrances, dispones his lands to Sir John Clark, his brother, irredeemably, but under a backbond, that how soon he is relieved of his cautioners, and the debts owing him are paid, he shall denude. Sir William Menzies acquires right to sundry apprisings, which bear the lands speciatim, and then, a general clause of all other right, title, and interest James may have therein: and one of them mentions “backbonds.” Dr Andrew Brown of Dolphington, being likewise a creditor, he adjudges, per expressum, Sir John's backbond to his brother, and, in the ranking, craves to be preferred; because, though posterior to Sir William Menzies, yet, having adjudged the only right that was standing in Wright's-houses' person, and narrated the very date, tenor, and contents of the backbond, I must be preferable to you, who have adjudged the property of the lands from him, which truly he had not; and special clauses do always derogate from general ones, and preponder.
Answered,—Sir William is not in the case of a general clause, for his adjudications mention “backbonds” as well as the Doctor's: and creditors cannot perfectly know all the rights standing in the debtor's person; so that adjudging at random the lands, it will carry all subaltern rights; because sub majore omnia jura minora continentur, et semper specialia generalibus insunt. See 21st November 1 673, Fairholm against Benton; and 23d January 1674, Nisbet and Mean. And, if it were otherwise, debtors might dispone under latent backbonds which can never come to their creditors' knowledge, being no where re-gistrate; and so defraud their diligence. It is true, if one adjudge his debtor's lands, lying within such a shire or parish, without designing them, and another adjudges them by their special names, as they stand in his author's charter, the first will be null against the co-creditors, but good against the debtor himself; as was found between the competing adjudgers of Menzies of Enoch, 21st July 1680, where the Lords found an adjudication of lands undesigned null. But Sir William Menzies's rights are as formal and special as our law requires, and will carry this backbond as fully as Doctor Brown's; and, being long prior, must be preferable.
Some of the Lords laid hold on the latency of the backbond. But it being alleged, That Sir John had deponed and produced it in the process, where it had lain for a long time, they remitted this point to the Ordinary to be further heard. Yet, many inclined to think the general clause comprehended this backbond sufficiently, and were for preferring Sir William Menzies to the Doctor. Though some think the 1. 80 D. de Reg. Jur. goes quite another way. In toto jure generi per speciem derogatur, idque potissimum habetur quod in speciem directum est.
Vol. II. Page 602.
[See the subsequent part of Fountainhall's Report of this Case, Dictionary, page 187.]
