Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Alexander and George Erskines
v.
John Reynolds, Bailie of Montrose

Date: 6 July 1676

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The deceased Alexander Reynolds, after his contract of marriage with Elizabeth Guthrie, did grant her a bond for payment of the sum of two thousand merks to her, or any she should nominate, at the first term after his or her decease; which being assigned, with consent of her husband, after the marriage, to Mr James Rate, and transferred by him, in favours of Alexander Lessly, her son of a prior marriage,—after his death, Alexander and George Erskines, as executors, and having right to the bond, did pursue John Reynolds, as representing his father nominibus passivis, to make payment of that debt; and likewise did libel a declarator, that, after contracting of that debt, he being locupletior factus by his father, who did grant him an assignation to sums of money and other goods, extending to forty thousand pounds, which he had uplifted; and did thereupon conclude that he should be liable for the debt: the pursuers, not being able to overtake the defender as heir, or upon any passive title, did insist upon the foresaid declarator, as being locupletior factus, by a provision after contracting of the debt.

It was alleged, Absolvitor; because any provision, made in favours of children, can never be a ground whereupon to pursue a declarator to make them liable for their father's debt, until first all the representatives of the father, such as heirs, executors, or vitious intromitters, be discussed; whereas the pursuer's mother was known to be vitious intromissatrix with the father's goods; and of purpose to gratify the pursuers, who were grand-children by a first marriage, did make them to pursue the defender, who was son to his father of a prior marriage, and so was most unfavourable: besides that, the libel upon such a passive title had no foundation, neither in our law nor practick.

It was replied, That the declarator ought to be sustained notwithstanding; because it is uncontroverted, that children's provisions are liable to creditors for satisfying prior debt; and the pursuers have libelled upon all the passive titles, and insisting thereupon; and, referring the verity of the provision made to the defender, to his own oath, which was already sustained; and whereupon he hath deponed and confessed the verity, he cannot now force the pursuer to discuss all the representatives, and after he hath failed in any success to return to this action: whereas he is now willing, upon payment, to assign the defender, that he may pursue or get relief of any of the representatives of his father.

The Lords, having considered this case and declarator, as not ordinary in practice; and resolving to make this a leading case, did sustain the declarator; unless the defender could condescend upon as much estate as this debt did amount to, which the pursuer might overtake by a legal title or diligence, or that he could condescend upon an heir, executor, or some other representative, who in law would be liable: being moved upon this reason, that, if it were otherwise found, it might occasion infinite pleas, and force a lawful creditor to more necessary charges than the debt might be worth.

Page 551.