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Scottish Court of Session Decisions >>
Mr Robert Blaw, Schoolmaster in Edinburgh, v His Father. [1711] Mor 12908 (12 July 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor3012908-057.html Cite as:
[1711] Mor 12908
Subject_1 PROVISION to HEIRS and CHILDREN. Subject_2 SECT. VII.
Obligation by one in his contract of marriage, to provide certain sums or subjects to the issue of the marriage, how far effectual in competition with creditors?
Mr Robert Blaw, Schoolmaster in Edinburgh, v. His Father
Date: 12 July 1711 Case No. No 57.
A father found to be vergens ad inopiam, so as to induce an adjudication in security gainst him; because he had granted bonds of provision to his children, which would exhaust his funds.
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Mr Robert Blaw having pursued an adjudication against his Father, upon a bond granted to him by his Father, for borrowed money payable at the Father's decease, upon this ground, that the Father was vergens ad inopiam by granting a bond of provision to his younger children, that would exhaust all his effects;
Alleged for the defender; There can be no adjudication in this case, for the sum in the bond, whereof the term is not come. Because adjudications since the 1672 are come in place of apprisings, and such a debt for which a previous poinding could not be used, cannot be apprised for. 2do, Property cannot be transferred without statute or custom, and there is neither statute nor custom for an adjudication of this kind. 3tio, It would be inconvenient, in so far as, it would let all the Father's creditors loose upon him. And upon the same ground adjudication might be sought upon warrandice before eviction, upon relief without distress, and at the instance of wives and children upon contracts of marriage during the standing thereof.
Replied for the pursuer; Adjudication here is not craved upon the act 1672, but only an adjudication in security, whereof the legal doth not expire, introduced by custom from the analogy of the statute. So adjudications are allowed in favours of wives against their husbands, in implement of their contracts of marriage, albeit the term of payment was not come, or uncertain by the husband's, surviving the wife. And my Lord Stair holds, B. 4. T. 51. § 9. That adjudication is competent for illiquid debts. In the Roman law creditor in diem might have had the benefit of missio in possessionem, especially where, as here, there was evidence of the debtor's growing poor. And for the same reason a pursuit for relief in such a case is competent with us to a cautioner before distress, or an action for implement upon a contract of marriage before the term. Is there not par ratio for granting adjudication in security in this case, as for granting arrestment upon a bond before the term of payment, till it be loosed upon caution?
The Lords, upon report of the Lord Cullen, were clear, that decreet of adjudication should be granted, in respect the defender was vergens ad inopiam; unless within a certain time he find sufficient caution to the pursuer.
Forbes, p. 523.
*** Fountainhall's report of this case is No 57. p. 8149., voce Legal Diligence.
