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.
Robert Colvil, Minister at Glenluce, v. William Biggar of Woolmet
Date: 31 January 1712
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William Biggar of Woolmet being debtor to sundry persons in considerable sums, and, amongst the rest, to Mr Robert Colvil, minister at Glenluce, he convenes his creditors, and, with their consent, grants an absolute disposition of his estate in their favours; who pitch on five of themselves to be trustees, who are infeft for the behoof of the whole, and empowered to sell the lands, if not paid before Whitsunday 1708; and in the mean time to apply the rents for paying their annualrents primo loco, and their principal sums so far as it would go: and upon this they gave him a supersedere of all diligence, both personal and real. Mr Colvil, wanting three or four years' annualrent, and thinking the trustees minded themselves more than they did him, raises an adjudication.
Against which Woolmet objected,—The craving this adjudication was more humour than interest; for he had very fairly denuded himself of his estate, both real and casual, both to prevent the creditors casting out needless expenses, in adjudging, arresting, or the like, and heaping the same upon him: which method had proved very successful in Edzell and Thomas Robertson's case, and sundry others where it was tried; and that Colvil is one of the consenters who agreed to it, and, having accepted, cannot resile now, unless the trustees first repone him to his own estate; and, except a small competency to himself, the rents go to his creditors; and Mr Colvil may have his proportion effeiring to his sum. And the very design of the disposition was to be free of adjudging and overwhelming him with the expense of diligence. Neither will an adjudication advance your payment; for it has the course often years, and in this way now laid down you may get payment much sooner; so the compulsitor you build on will not operate your design. And by Mr Colvil's resiling now, were to impose a trick upon Woolmet, and hound out all his creditors on him, though he is denuded of his estate in their favours: et malitiis non est indulgendum; contrary to Mr Colvil's express consent and paction.
Answered,—Denying he agreed either to the disposition or nomination of the trustees; esto he had, the condition was only conditional that he was paid of his annualrents, and the lands rouped to pay the principal sums; none of which is done: but he and the trustees collude together; and, at this rate, a debtor might easily ensnare his creditors, by giving them a disposition in a trustee's name, and gratify such as he pleased, neglecting the rest, and so bind up their hands from either pursuing him or affecting his lands. But law is more just and equal than so. Suppose I have accepted a wadset, and am in possession, will that hinder me in farther security to adjudge? In the Roman law, neither a legal nor a conventional hypothec could stop the creditor from seeking a missio in possessionem bonorum debitoris, which was the pignus prœtorium; and if they were not satisfied intra annum, then followed the venditio bonorum authoritate judicis. And seeing no course is taken for paying my sum, what can hinder the free current of law to take place? especially seeing the disposition bears a clause, that, if any of the creditors disagree, the rest shall be at liberty to proceed in diligence; from which I can never be precluded, unless I had accepted the right in satisfaction, and discharged or renounced my debt. And seeing I have no benefit by the disposition, I am willing to repudiate it.
The Lords thought the minister too hard on his debtor; and therefore found he could not adjudge, it being proven that he accepted the disposition, and consented to the nominees; but thought, in a reduction, he might be liberated of it, but not in this process. This was only carried by the President's vote, and was designed as a spur to get the man his annualrents.
