Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. collected by JAMES BURNETT, LORD MONBODDO.

Creditors of Sir Alexander Murray

Date: 28 November 1755

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Sir Alexander Murray of Stanhope disponed his estate to his brother Charles, upon this condition,—that it should be liable for all his debts, and that preferably to the debts of his brother Charles. At the time of this disposition the estate was not near bankrupt, nor was Charles, the disponee, a bankrupt; but afterwards he contracted very large debts, for which adjudications were led against the estate conveyed to him by his brother : and the question was, Whether,—by the disposition above recited, qualified with those clauses and provisions concerning the preference of Sir Alexander's debts, which were all inserted in the procuratory, precept and sasine following upon the disposition,—Sir Alexander's creditors had any preference over the creditors of Charles, or whether both creditors were not to be preferred according to the common rules of law, that is, according to the priority of their diligence. And in the first place, it was an agreed point among the Lords, that there could be no reduction here on the Act of Parliament, for though the disposition was omnium bonorum, and to a conjunct and confident person, yet, as it was expressly with the burden of Sir Alexander's debts, and that the estate might have been, and was, adjudged by Sir Alexander's creditors, they thought the disposition was not in fraudem creditorum : indeed, if Charles had been obæratus, it would have been in prejudice of the creditors of Sir Alexander ; because, let their diligence have been never so early, Charles's creditors would have adjudged along with them, and so coming in pari passu, there would not have been funds sufficient for them all, and therefore the Lords thought that the case would have fallen under the Act of Parliament. Lord Prestongrange said, that the preference of Sir Alexander's debts being a modus and quality of the right, inserted in all the steps of the conveyance, he did not see why it should not be understood to qualify Charles's right so that Sir Alexander's creditors should be preferable ; which would be no more than if Sir Alexander had disponed his estate, reserving as much as was sufficient for the payment of his debts ; in which case Charles could be reputed only proprietor of what remained, after paying Sir Alexander's debts. He thought the case was the same here, and for the same reason that Sir Alexander's creditors could adjudge an estate belonging to Charles, he thought their adjudications would be preferred to the adjudications of Charles's creditors ; but the rest of the Lords were of opinion that pacta privatorum non derogant jure communi, and that this clause in Sir Alexander's settlement could not alter the ordinary rule of preference among creditors ; and though Sir Alexander intended to give a preference to his own creditors, yet he had not taken the proper method to execute that intention.

N. B. In this case the Lords were unanimous that the adjudications led against Sir Alexander, after the feudal right was vested in Charles in manner foresaid, were valid and effectual; dissent. tantum Kaimes: and to this interlocutor they adhered, 11th December 1755.

Another question in this case was, Whether Sir Alexander having taken a gift of the mines upon his estate from the crown, and afterwards contracting debts, and one creditor adjudging the lands simply, and another after him adjudging the lands and mines specially, which of these two was preferable as to the mines? And the Lords found that the adjudication of the lands carried also the mines; dissent. Preside, Minto, &c. who thought that mines, being inter regalia, were a separatum tenementum as much or more as teinds ; and by the un-printed Act 1592, they were to be held of the crown feu, upon payment of a tenth part by way of feu-duty j so that, supposing the lands to hold ward or blench, the mines would hold by a different tenure, and consequently were a separate tenement. But to this it was answered, That mines of lead and copper, such as those in dispute, were not inter regalia, neither by the common law, nor by the statute of James I., although the Act 1592 does indeed speak generally of all mines, which by that Act are supposed to be in the gift of the crown.