Scottish Court of Session Decisions

Subject_1 OBLIGATION.
Subject_2 SECT. IV.

Whether an obligation or a resolution only?

Patrick Robertson
v.
Mackenzie of Fraserdale

Date: 28 January 1737
Case No. No 25.

Found that a bond for an onerous cause, bearing, that, in case it was resting unpaid at the creditor's death, it should belong to the debtor's heir, might be gratuitously assigned, although resting at the creditor's death.

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The deceased Lord Prestonhall, anno 1710, granted a bond to Agnes Cockburn, his servant, bearing, That he was justly resting and owing her the sum of 1000 merks, which he obliges himself, his heirs, &c. to pay to her at Martinmas then next, after which is subjoined the following clause:

“And in case the said Agnes Cockburn shall not call for the said principal sum, and uplift the same, with the annual rents thereof, before her death, then, and in that case, the said sum, with the annualrents thereof, or what part of the same shall be resting unpaid at the said time, is hereby declared to belong to Alexander Mackenzie of Fraserdale, my son, with the burden of the said Agnes Cockburn, her burial, in such way and manner as she shall appoint before her death.”

Agnes assigned this bond to Patrick Robertson, who, after her death, intented a process against Fraserdale, as representing his father, for payment.

The defence was, That the bond being granted partly for wages, partly as a remuneration for faithful services, was plainly intended as a fund of maintenance for the said Agnes Cockburn; not that she should have liberty to alienate the same in prejudice of the defender, to whom, by the tenor thereof, it was to belong, in case she died without uplifting the same. It was owned she might have spent the money, and that her creditors, during her life, could have attached it; but, that her power and property therein died with herself; therefore the bond fell to be considered as conditional, payable to Agnes, secluding heirs or assignees; and, failing her uplifting it, to the defender.

2dly, The clause imports a return in favour of the granter's heir, which is more than a simple destination, so that a prohibition to alter gratuitously is implied; of consequence, the pursuer should prove the onerous cause of granting the assignation; for the narrative thereof, bearing that the assignee had made payment to the cedent of sums equivalent to the bond assigned, is not evidence sufficient of the onerosity; otherwise, every person who was under a prohibition to alienate gratuitously, might render such limitations elusory and ineffectual.

Answered; That the clause, upon which the defence is founded, imports no more than a substitution in favour of Fraserdale, whereby the debtor was taken bound to pay the money, in case it remained unuplifted, which could not disable the creditor, to whom it was payable simply, without any condition to dispose thereof. It is true, Agnes preferred Fraserdale to her own executors, but there is nothing in the bond that shows she intended to tie up her own hands; 2dly, The assignation was granted for an onerous cause, and the narrative thereof presumes the fact to be so, the cedent and assignee not being conjunct persons; but, whether onerous or not, is no way material, seeing she could have gratuitously altered the substitution.

The Lords found, That the bond being for an onerous cause, Agnes Cockburn could assign it gratuitously.

C. Home, No 51. p. 90.