Scottish Court of Session Decisions

This was a competition for the share of the moveable estate of the late Thomas Brown, writer in Glasgow, thereafter residing at Irvine, falling to his niece, Margaret Brown or Paton, under his settlement. It was claimed by Mrs Paton and her husband, Adam Paton, and also by James Craig, Comely Park, Glasgow. The grounds of Mr Craig's claim were, that on 12th September 1860 Mr and Mrs Paton had granted to him a promissory-note for £128, 10s., payable three days after date, and in order to secure the payment thereof, had, on 29th September 1860, assigned to him their respective interests under the late Mr Brown's settlement. Mr Craig had used diligence on the promissory-note, and arrested in the hands of the trustees. It was originally stated for Mrs Paton that Mr Craig obtained the promissory — note under a promise that it would be kept by him only by way of security of advances made and to be made, and that no diligence should be used on it; that immediately after receiving it he gave a charge of payment to her husband; that when the charge was about to expire, Craig “requested the presence” of herself and her husband at the Glasgow Police Office, where a lieutenant of police produced the assignation, and, under threats of the immediate incarceration of her husband, coerced her to sign it. Her subscription, she said, was extracted from her by force and fear; the deed was never read over or ratified by her, no consideration was given for it, and its narrative was false. Mrs Paton was allowed to lodge an issue to prove these averments; but in February last her issue was disallowed by the Court in respect of the irrelevancy of her averments. Mrs Paton did not state on record what was the nature of the incarceration, the fear of which induced her to sign the deed. She could not say that it was anything other than the diligence which Mr Craig was entitled to use for recovery of his debt, and the Court held that it was not a sufficient averment of force or fear that a wife has acted out of anxiety to save her husband from imprisonment for debt.

The case then returned to the Lord Ordinary, when Mrs Paton pleaded that the assignation was not binding, in respect that although it bore in gremio that her brother, Matthew Brown, was also a party to it, it had not been signed by him. She averred that, being a married woman, she could not legally undertake the obligation in the promissory-note, and that she signed the assignation merely as a cautioner, and on the understanding that Matthew Brown was also to sign it as a co-obligant. She therefore pleaded that on the principle of Pringle v. The Scottish Provincial Insurance Company ( 20 D. 465) the assignation was not binding on her. The Lord Ordinary (Ormidale) held that there was nothing in the assignation to indicate that Mrs Paton and her husband were cautioners merely, but that from the admissions on record it rather appeared that they were principal debtors, and were therefore not entitled to the equities pertaining to cautioners. In such a case the subscribers are liable for the whole, provided the omission of the signature has not arisen from any fault or collusion of the creditor. ( M'Donald v. Stewart, 5th July 1816, F.C.). Mr Craig was therefore preferred in the competition. The Patons reclaimed. The Court to-day, without calling for a reply to the reclaimers' counsel, adhered.