Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BANKRUPT.
Subject_3 Construction of the second branch of the Act 1696, c. 5.

Katherine Keir, &c
v.
George Warden

Date: 5 August 1777

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[Supplement, V. 386.]

Covington. The heritable bond has no connexion with cautionary obligation: it is altogether a novum debitum: it ought to be reduced,—the only consequences will be to bring in the parties pari passu.

Braxfield. Ex facie, the bond does not fall under the enactment of the statute 1696. The transaction might have been so executed as to have given an absolute security to the creditor for the greater part of the debt. There has been great inaccuracy here, but I doubt whether there is enough to cut down the obligation. It was understood for many years, and even until 1734, that general burdens were effectual. The Act 1696 seems, to a certain extent, to have altered what was then understood to be law. Suppose that the statute 1696 related to infeftments for specific sums; Query, May not this infeftment stand, where the intention of parties was honest, though the writings are inaccurately expressed?

President. I imagined that the Act 1696 was calculated for the very purpose of preventing such stipulations as the one in question. If the writer of the deeds has not obeyed the directions of the Act of Parliament, are we to supply his ignorance or folly?

Monboddo. There is a distinction here between the two bonds. The bond for L.300 was granted when not a shilling had been advanced by the cautioner: the bond for L.73 was granted for a debt already contracted. The bond for L.300 falls under the statute 1696, as being a covert for fraud. The cautioner might have assigned the bond and infeftment for an onerous cause, and then the purchaser would have been safe, while Warden's right as a cautioner still subsisted. Even without this, Warden might have been ranked both for his bond and for his assignation from the master. The nature of the bond would only have been probable by Warden's oath, and, had he died, his heirs must have been ranked for both. In this view, the words of the statute ought to be liberally interpreted. It is impossible to say that the Act 1696 relates only to indefinite and not to definite sums. In the case of Dempster, the sum was definite: this case is infinitely stronger than that. Indeed, I should have inclined to the opinion of the single judge who was against the decision of Dempster. As to the bond for L.73, as that money was advanced by the cautioner, the bond may be supported although inaccurately expressed.

Alva. As no prejudice has been done to the creditor, I think that the bonds may be supported.

Justice-Clerk. The debt was not due by Law at the time that the first bond was granted, although the ground of debt was, that, in case Law did not pay the rent at the Whitsunday following, he was bound to relieve Warden. The argument for Warden goes this length,—that, wherever there is a causa remotior obligationis, it is sufficient to authorise an infeftment to the prejudice of other creditors. I cannot transmute the bond granted into another sort of security.

Gardenston. I pity the case of Warden, who appears to be a fair creditor and an honest man; but I cannot relieve him: it would destroy the statute 1696 if security for sums liquidated was held good.

On the 5th August 1777, “The Lords sustained the objection to the L.300, but repelled the objection to the L.73 bond.”

Act. Ch. Hay. Alt. R. Blair. Reporter, Covington.

Diss. As to L.300 bond, Alva, Stonefield, Westhall, Braxfield.