Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Rowan
v.
Shaw

Date: 12 July 1627

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In a suspension betwixt Rowan and Shaw, where a bond was made by a debtor, granting him to have borrowed from umquhile Ferguson some money, which the debtor obliged himself to pay to his said creditor, or to another called Shaw, or to either of them, presenters of the bond, and their heirs and executors; which sum being craved from the said debtor, after the decease of Ferguson the principal creditor, by the creditor of the said Ferguson, who had arrested the same; and also the said sum being craved by the executors of Shaw, who was adjected in the bond, acclaiming the same to be due to them, seeing the payment by the bond was appointed to be made to one of the two presenters of the bond, and their heirs and executors, and that they had the bond, and so contended the right of it to pertain to them, and not to Ferguson, nor his creditors;—the Lords preferred the executors of the person adjected, in respect of the tenor of the bond appointing payment to be made to one of the presenters, or their heirs or executors; for, albeit the bond was not presented by Shaw in his own lifetime, and that the sum was the proper money of Ferguson, yet it was found as due to his executors as to Shaw himself, seeing they had the bond: and albeit, by the civil law, adjectus solutioni non potest petere sed tantum potest solutionem accipere, yet that agrees not with our practice, whereby adjectus potest etiam petere: And albeit, by our practice, is possit petere, yet if he and the principal creditor were contending for the sum, the principal creditor, lender of the money, would be preferred to the adjected; nevertheless here, the executors of him who was adjected were preferred to the creditor of him who principally was deduced in the obligation; for, if he had been living, the adjectus would have been preferred to himself, because the said executors of the person adjected had the bond in their possession the time of his decease, and it was found in bonis ejus, and amongst his writs, after his decease; and that the principal creditor, Ferguson, lived four months after him, and never sought the sum; likeas, the time of the date of the bond, he was owing greater sums to the person adjected than the sums contained in this bond, which were presumptions that the bond was given to the person adjected, at the very making thereof, for satisfaction of that debt, pro tanto. And this allegeance was admitted to probation, and was the cause of this decision, preferring the person adjected to the principal and his creditor, seeing there was nothing qualified to infer simulation, or that the bond came in his hands by any indirect or unlawful means; and it was not respected, that it was alleged that the debtor had paid this sum to the creditor who had arrested.

Act. ——. Alt. Millar. Hay, Clerk.

Vid. 2d February 1628, L. Duffus.

Page 308.