Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

Sir William Dick
v.
Alexander Keir

Date: 14 December 1649

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In the suspension by Sir William Dick against Alexander Keir, his reason of compensation upon that, That umquhile Patrick Keir, father to the charger, was debtful to him in greater sums, as he who had taken upon him, through his wife, one of the three heirs and executors of umquhile James Houstoune, factor, to satisfy the said James his creditors,—was not found relevant; because those sums were not made liquid either against the said umquhile Patrick or against his son, who would neither be heir nor executor to him, but would bide as before; so yet still a process of count and reckoning; and so were not compensable: As Cod. de Compensat. L. ultima, ubi vult imperator causam esse liquidam, nec multis ambagibus innodatam sed debitum certum non contraversum et presens, ut nec quod alteri debetur ad compensandum. adjici L. 13, ff. L. 9, Cod. eod. It is to be marked, that the bond charged upon was made by Sir William Dick to umquhile Patrick Keir, during his lifetime, and to the said Alexander and his sister, after his decease; the which bond was thought to be the father's money, as proceeding from him, and payable to him during his lifetime; so that the said William, debtor to the said umquhile Patrick, might compense the same by the foresaid sums, wherein the said Patrick was debtor to him, in manner above specified. But it is to be considered, that Sir William Dick's bond was granted to the father, with substitution to his children, long before the said umquhile Patrick was debtor to the said Sir William; who could not be ignorant that those monies were provided to the bairns by their father, perhaps out of their umquhile mother's means. Neither had the father made that provision, to the prejudice of any lawful creditor, (as may be feared that men will do,) since his burden of satisfying umquhile James Houstoune's creditors did come upon him unawares, long after the foresaid provision, and, perhaps, before he married James Houstoune's sister to his second wife; for even a son is not obliged to pay the father's debt, nisi sit successor post contractum debitum. And, if the foresaid bond had been made or conceived, [to] the father in liferent and the son in fee, and that long before any debt contracted by the father,—could the father's posterior creditor get any thing but the father's liferent of that bond? Another case of substitution is not far different, the father reserving to himself the uplifting of the sum, as lawful administrator to his young children, that he might employ the same as profitably as possible for them, and he might have the annualrent duly paid.

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