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Patrick Park and William M'Craw v John Liddale. [1699] 4 Brn 467 (14 December 1699)
URL: http://www.bailii.org/scot/cases/ScotCS/1699/Brn040467-0905.html Cite as:
[1699] 4 Brn 467
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Patrick Park and William M'Craw v. John Liddale
Date: 14 December 1699
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Patrick Park in Glasgow, and William M'Craw, his assignee, pursue John Liddale, as heir to William Liddale, his father, for payment of a sum contained in his father's bond.
Alleged,—This debt is discharged, in so far as the said Park, in a discharge he gave the said William Liddale of a former debt, not only discharges him of that, but of all bonds granted or to be granted by the said William Liddale to him, unless one of the said William Liddale's three sons be consenting and subscribing thereto; but so it is, Park takes this posterior bond from Liddale, without any of his sons consenting: and so is null.
Answered,—This nonsensical discharge of a debt, before it was existing, or in rerum natura, can never meet this bond granted since; for, esto it were an interdiction, yet it can never operate, being in such an unusual latent and extraordinary method, not known by law, without either publication or registration; and, being in Liddale's favours, what hindered him to pass from the same, especially being a restraint laid on him sine causœ cognitione? and, by his giving this posterior bond, he has actually renounced it.
Replied,—Though this restraint could not have the effect of an interdiction against third parties, yet it was sufficient against Park, who inserted it in his own discharge; and he needed no intimation, for certioratus non est amplius certiorandus; and the father was known to be a simple, facile man, and so the quality that his sons should consent was not without cause; and the bond, by that prohibition, was ab initio null, and never obligatory; et quod à principio vi. tiosum est, non potest, ex post facto et tractu temporis, convalescere.
The Lords thought the clause of discharging posterior bonds incongruous; and that, as it was a voluntary deed of the father's, he might loose himself when he pleased; and, as to his facility or levity, there was no standard settled by law for that, but only idiotry, furiosity, or dotage, that he was insensible or imposed on: and therefore refused to put the parties to expense in trying his condition, unless there were pregnant qualifications of his weakness given in to convince the Lords of the same.
