Scottish Court of Session Decisions

Subject_1 CAUTIO JURATORIA.

Leviston
v.
Buchanan

Date: 4 December 1696
Case No. No 6.

A disposition omnium bonorum being granted, as usual, along with juratory caution, the Court refused to allow it to be delivered to the charger, that he might be infeft on it, during the dependence of the action.

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Rankeilor reported a bill of suspension by Leviston of Kirkland against Buchanan of Arnprior, wherein the Lords had allowed him to consign a disposition, on his giving oath that he could not find better caution than he offered; Arnprior craved up the disposition, to the effect he might take infeftment thereon, because the suspender was vergens ad inopiam, and other creditors, during the dependence, might do diligence, and be preferred to him.——The Lords considered the ancient uniform custom was, that these dispositions were only consigned evidents, not to be made use of till the cause was discussed in favours of the charger; and if this were granted, it would put the lieges to great expenses in taking sasine, and would make these dispositions delivered evidents under an irritant and resolutive clause and condition, that if the suspender prevailed, then the disposition and sasine should be void and null in themselves; and the inconveniences on the other side are easily solved; for the disponer cannot prejudge him by any voluntary subsequent deed; and as to prior creditors going on to adjudge, the suspension would not hinder this charger to do the same, not on the consigned disposition, but on his registrate bond or decreet, which is the ground of his debt; and therefore adhered to the former custom, and would not allow the disposition to be given up, to be made use of till the event.

Fol. Dic. v. 1. p. 122. Fountainhall, v. 1. p. 739.