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It was found no nullity in a writ, that it was tested thus, “Before these witnesses A. and B. in Inverasragan;” which was not thought to be the same with that of Halden against Ker, Sect. 5. h. t. in which case the designation servitor could only apply to one of the witnesses without a re-duplication, which was the very thing wanted; whereas, without any re-duplication, “in Inverasragan” applies to both, and was therefore thought to be a good designation of both; 2dly, It was thought to be a good answer to an objection of that kind, that the granter had promised not to plead it.
Kilkerran, No. 18. p. 613.*** D. Falconer reports this case:
1750. January 5.
Archibald Campbell, vintner in Inverary, disponed to Colin Campbell of Inverasragan his brother, a tack of a house in that town, for his relief of certain considerable debts, in which he had become bound for him.
Thomas Wallace, merchant in Glasgow, a creditor of Archibald's, adjudged the tack, and pursued mails and duties, in which he was opposed by Inverasragan on his disposition, who had since the adjudication made payment of a debt he was bound in.
Objected to the disposition: In so far as it is supported on the cautionary and subsequent payment, the bond, wherein the disponee was, bound, is null; being subscribed before Thomas Watson and Mr. Duncan Macpherson in Inverasragan, so that the first witness is not designed; and so it was found; that a bond subscribed before A. and B. servitor to C. was null;——1714, Haldane against Ker of Cavers, Sect. 5. h. t.
Answered: The word “servitor” could only apply to one of the witnesses; but in this case the reference to place, agreeable to grammar, applies to them both.
Objected, 2dly, The septennial prescription of cautionary was run, and he not obliged to pay; and if he did it voluntarily, could not, on that ground, support a right to compete with an onerous creditor, who had adjudged prior to the payments.
Answered: The cautioner was not obliged to use the prescription, for freeing himself from the obligation; and having paid, had a good claim against the debtor, whose debt still subsisted; and therefore may use any security he has from him against another creditor.
The Lords repelled the objections to the disposition.
See The same parties, No. 48. p. 2805. voce Competition.
Act. J. Ferguson.Alt. H. Home.
D. Falconer, No. 116. p. 133.
