Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

The Countess of Wigton and Lady Mary Kennedy
v.
The Earl of Cassils and Lord Ruglen, his Tutor

Date: 8 January 1708

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In the ranking of the Creditors of Cassils, the Countess of Wigton and Lady Mary Kennedy craved to be preferred, on this ground, That the old Lady Cassils having, by her testament, nominated the last Earl of Cassils her executor, she burdened him with a legacy of L.500 to each of them: and they having pursued him for exhibiting the testament, for constituting their debts, and referred to his oath, he deponed in the Lady Wigton's process, and acknowledged the legacy: and, in Lady Mary Kennedy's process, he, after sundry commissions taken out to examine him at London, where he was then, suffered the term to be circumduced against him for not deponing; and so decreet went out: And hereupon both of them adjudged, and so craved preference.

Alleged for the present Earl of Cassils, and my Lord Ruglen, his tutor,—That he must be preferred; for, before the constitution of your debts, the Earl of Cassils had entered into a contract of marriage betwixt the Lord Kennedy, his son, and an English Lady, whereby the estate of Cassils is conveyed in favours of the heir of the marriage, which I am; and whereupon a public infeftment by a charter under the great seal followed, prior to the pronouncing of your decreet of constitution; and so, I being publicly infeft before ye were so much as found to be creditors to my grandfather, I am clearly preferable, on the 13th Act 1693, preferring real rights by the dates of their seasines.

Answered,—Though the date of their decreets of constitution be after his public infeftment, yet their citation upon the summons is two years prior; and his mora in not deponing, nor his entering into articles of contract pendente lite, cannot benefit him, nor prejudge them of their just debt: for, where a thing is once rendered litigious, any alienation he makes will not deprive me of the benefit of his oath to constitute my debt; as was found 20th June 1 673, Somerville. And, by the 19th act, 1672, introducing a new form of adjudications, a citation is there made a bar to disable the debtor from doing any deed in prejudice of the creditor-citer. Besides, the disposition here is by my debtor to his apparent heir; and so is a plain prceceptio hcereditatis, et successio titulo lucrativo post con-tractum debitum, and can never crave preference to me, but rather, on the contrary, makes them liable passive.

Replied,—A naked citation can never put third parties in mala fide, unless an inhibition had been raised and executed thereon; for in what register could the lady's friends who entered into that contract, and gave a considerable portion, find any such depending process? So his infeftment depending upon a most onerous cause, and being first completed, he ought to be preferred: and, in a parallel case, 10th January 1688, Bothwell, the Lords sustained a fee given by the father to his eldest son, to exclude an anterior bond of provision made by him in favours of his younger children, as being a latent deed.

Duplied,—The contract of marriage is a very good and adequate onerous cause for the jointure and provisions in favours of the Lady, which they do not compete with; but, quoad the destinations to the heirs of the marriage, they can never compete with the lawful creditors. And the decision in Bothwell's case was most just; for there the bond of provision was never delivered, and wanted the dispensing clause.

The Lords found, that the Earl's infefting his son during the dependance of their process could not prejudge them; and therefore preferred the creditors, legatars, to this present Earl's right.

Vol. II. Page 416.