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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.
Gilbert Grierson of Chappell v. John Neilson, Writer, Dumfries
Date: 11 July 1710
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Gilbert Grierson of Chappell having contracted many debts near to the value of his estate; and adjudications being led for the same, and purchased in by John Neilson, writer in Dumfries; upon a stated account betwixt them, Gilbert grants an absolute irredeemable disposition of his lands to Neilson; but, afterwards, he grudging that there was nothing given to himself, there is a second transaction, by which Gilbert and his wife of new ratify the former disposition, and Neilson gives him a liferent-bond of pension, for paying him yearly £20 sterling during his lifetime. Gilbert, being advised by some that he was overreached in this bargain, raises a reduction and improbation both of the disposition and ratification, on the grounds of law after-mentioned. And because such processes came not quickly to be terminated; therefore he raises a summons of aliment against the said John Neilson, for modifying a sum to him in the interim, till he could bring his reduction to a conclusion; and insists, on this ground, that, by the Act of Sederunt 1690, no aliments are to be granted to debtors, but Avhen there is a probable view of a superplus estate, more than will pay all the debts; and Gilbert subsumes, in thir terms, that Neilson, a man very cautious and circumspect, would never have granted a bond for £20 sterling per annum, had he not seen a plain visible fund out of which he could pay it. Next, reductions being, by their astrictions to many forms of process, very tedious, he craves only an interim aliment, till his reasons of reduction be determined, which are both relevant and pregnant in themselves, viz. 1mo, The dispositions were in trust, he being his agent, writer, and sole doer. 2do, They were not for an onerous cause, as is evident from his granting the £20 sterling bond. 3tio, He stands interdicted, as being a simple facile man, imposed upon by every body.
Answered,—There was never a more groundless process of aliment raised before the Lords than this, and he might as well crave it from any of his creditors as from Neilson the defender; for if this practice were once allowed, then a bankrupt heritor had no more to do, after he has sold his lands, but to raise a reduction, and crave an aliment in the meantime, though he knows he can never prevail. And the bond of aliment can never prove there is a superplus to come in after all the creditors are paid; for it bears expressly to be granted for love and favour, and out of mere pity and commiseration. And, seeing he founds upon it, he clearly homologates and acknowledges the disposition: and his pretence, that he only mentions it to demonstrate he had not paid an adequate price before, is captious and impertinent; for, if he repudiate the same, he can found no argument on it.
As to his reasons of reduction, answered to the first, anent the trust,—That there can be nothing more false and calumnious; for now, by the Act of Parliament 1696, no trust can be proven but scripto veljuramento; and let him choose any of the two he pleases. And, as to the second, against the onerous adequate cause; he oppones both the disposition and ratification, wherein he has acknowledged the same; and what can law require more than that? As for the pretended interdiction, it is published in anno 1675, and Ferguson of Craigdarroch, who lived last of all the interdictors, died in 1685, now twenty-five years ago; so to trump up an interdiction, after it has been so long dead and buried, is a downright mockery.
The Lords found no ground for modifying any aliment in this case; but prejudice to Gilbert to insist for his liferent-bond of pension, as accords.
