Subject_1 IMPLIED CONDITION. Subject_2 SECT. VIII.
Obligations, or Renunciations, granted upon an expectancy disappointed, or upon the supposition of a fund of payment of which the party is afterwards deprived.
John Watson in Barmuir v. James Fede in Fultoun
Date: 5 February 1724 Case No. No 48.
A supersedere was granted to a debtor by his creditor, upon the belief that the other creditors would concur. It was found to be not binding; the whole creditors not having concurred; but it was declared, that the granter of it could not be the first user of diligence against the debtor.
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Fede having suspended a charge at Watson's instance, upon this ground, that the charger had signed a supersedere to him, of which the term was not elapsed; it was answered for Watson, That he had subscribed the supersedere, upon the faith that all the suspender's creditors were to do the same, which appeared, from the narrative of the writ, to have been the design; and since not above a fourth part of the creditors had signed, the charger could not be bound; for it was not to be thought that he could have tied up himself from doing diligence, and left the other creditors at freedom.
The Lords found, that the supersedere was intended to be signed by the whole persons narrated in the beginning thereof, and found it not binding on those who had signed, in respect a small number only, and not the whole, had signed.
Upon a reclaiming bill for the suspender, representing, that though the greatest number of his creditors had not signed, yet none of these had done any manner of diligence since the date of the supersedere,
The Lords adhered to their former interlocutor, with this quality, that the charger could not be the first user of personal diligence against the suspender.
Lord Reporter, Forglen.For the Charger, Arch. Stewart, jun.Alt. Ja. Boswell.Clerk, Mackenzie.
Fol. Dic. v. 3. p. 300. Edgar, p. 21.
