Scottish Court of Session Decisions

Subject_1 BANKRUPT.

Home
v.
Mr Andrew Bryson

Date: 3 February 1672
Case No. No 4.

A confident person being pursued upon the act 1621, by an onerous creditor, whose debt was prior to the disposition granted to the confident person; it was not found a good defence, that the disposition was applied to satisfy a debt of the bankrupt's; the bond for the debt being granted in lecto, which was known to the defender, and therefore presumed gratuitous.

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Barbara Home pursues Mr Andrew Bryson for implement of a part of her contract of marriage with his father, and for declaring that the lands disponed by his father to him after the contract, being in prejudice of her, a creditor, ought to be burdened with her debt; and particularly a house at the West port, whereof his father had right by apprising. It was alleged for the defender, that albeit his disposition had been without a cause onerous; yet by the act of Parliament 1621, whereupon the pursuer founds, all sums paid by confident or interposed persons to the interposer's creditors, are allowed; and it is offered to be proven, that the defender disponed the right of apprising of the house in question to John Johnston, for satisfying a bond granted by his father as principal, and himself as cautioner, which he might lawfully do, the pursuer at that time having done no diligence, and he himself being cautioner. It was answered, that in this case the defender could not prefer John Johnston; because the bond granted to him by the defunct, if it had competed with this pursuer, albeit prior in diligence, yet she would have been preferred, because it was granted in lecto, which was very well known to the defender, having subscribed the bond with his father three or four days before his death, and so he could not prefer such a debt, which he knew was invalid, to the the pursuer's contract of marriage, whereof he could not be ignorant, she being then his father's wife, and he in the family; for defuncts on death-bed can neither prejudge their heirs, nor creditors who may come in place of the heir by diligence. It was replied, That there is here no reduction ex capite lecti, and the defender being cautioner for his father, he might justly satisfy the debt out of the right disponed to him by his father, albeit his father subscribed in lecto.

The Lords found, that the defender could not prefer this bond subscribed by the father in lecto, to an anterior creditor of the father's; and the defender's oath of calumny being taken, whether he had reason to deny that his father was in lecto, when he subscribed this bond, and he having acknowledged the same; The Lords found him liable for the sum contained in the apprising; but he offering to prove, that the bond subscribed in lecto, was for an anterior necessary cause,

The Lords superseded extract till he should produce evidences for instructing thereof.

Fol. Dic. v. i. p. 66. Durie, p. 60.