Scottish Court of Session Decisions

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.

The Countess of Kincardin
v.
Colonel Erskin

1699 and 1700.

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1699. July 28.—The Earldom of Kincardin being exposed to roup, Colonel Erskin, as the only bidder, got the same; and it being one of the articles of the sale, that the buyer and highest offerer should find caution within ten days, and those he designed to employ being out of town, and so the caution not being given in,—the Countess, by a bill, craved the roup might be declared null, and he decerned in the penalty. The Lords having remitted the bill to Lord Crocerig, who, after hearing the offers of caution made, reported to the Lords, that Colonel Erskin and his brethren were creditors on the estate for 110,000 merks, and that he had the consent and concourse of other creditors for £100,000 more; so that there was no more behind of the price to be found caution for, but only 140,0 merks; for which his own estate, and the fortunes of Pitmillie, Glaidny, and Mr William Thomson, the three cautioners offered, were more than sufficient, besides the land itself still liable to the creditors.

Answered, 1mo. That the caution not being found within the time prefixed by the articles of the roup, it is not now receivable; for if the Lords can alter one part of the roup, why not another, and so in infinitum, which might destroy that excellent Act. 2do. The caution, in such cases, must be persons having estates to the value of the whole price, and a third part more; and it must not be patched up, and constrained by the consent of creditors, where the Lords could not know what rank of preference they had, or what share of the price would fall to them; for they may be such as can expect little or nothing of the price, and so their concourse can import nothing; and the parties offered are not sufficient for the half of the price; and if such sham offers of caution were sustained, creditors would be very insecure.

The Lords considered the exacting of caution was not required by the Act of Parliament, but introduced by the Lords for making the sales effectual; and therefore some doubted if they ought to interpose, except where the clerks scrupled to accept of the caution, and were complained on, as refusing a security unexceptionably clear; there the Lords might meddle, otherwise not.

2do. It was Reasoned,—That the caution offered needed not be worth the adequate value of the land, where the buyer was a considerable creditor himself, and had the concourse of others; for this diminished the price pro tanto, and gave the creditors, not consenters, access against the cautioners before them, though otherwise not preferable by the decreet of ranking.

The Lords, before they would determine this important case, what should be the standard of the sufficiency of such caution, recommended to the Ordinary to call for the ranking, and see in what order of preference these creditors stood who concurred with the buyer, and what was the extent of their sums; after which they would see if the caution offered was unquestionable quoad that part of the debts left behind; and shunned to lay down a preparative in so new and nice a point.

Vol. II. Page 65.

1700. July 6.—John Cochran of Ochiltrie, brother-in-law to the Earl of Kincardin, gave in a protestation to the Parliament for remeid of law against the Lords' interlocutor, sustaining Colonel Erskine's caution, as he who bade most at the roup of that estate, (Vid. 28th July 1699,) and so was preferred; and it was urged to be inserted in the decreet: But the Lords thought it needless, and that the clerk should only give them an instrument, bearing their protest; though, in the Lady Castlehavens against Colinton, it was engrossed in the decreet.

Vol. II. Page 102.