Scottish Court of Session Decisions

Subject_1 WRIT.

Sir Thomas Calder's Creditors
v.
James Calder

1744, June 26.
Case No. No. 16.

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Sir Thomas had got from Kilravock, &c. a right of pre-emption of the estate of Muirton, in case they should sell it, that he should have it at a price then agreed, and which, 1734, he made over to his son James, after he was insolvent. There had been certain processes at Sir Thomas instance concerning that right, in which Sir Thomas was cast before the Session, which brought on a submission at London, wherein the son James submitted, as burden taker for his father, and arbiters decerned Kilravock, &c. to pay L.700 Sterling, and Sir Thomas and his son to grant a discharge of that right. The discharge was duly signed by Sir Thomas, and sent to London to be signed by the son, who sent it to his agent at Edinburgh, signed by him and the witnesses, with a direction for filling up the names and designations, and to deliver it upon payment. Sir Thomas's creditors arrested and pursued forthcoming, and Kilravock, &c. raised a multiplepoinding, wherein Lord Minto, Ordinary, 1st, found the money Sir Thomas's effects, and affectable and affected by his creditors: 2dly, He caused the agent produce the discharge, with James Calder's letter: 3dly, He ordered the clerk to fill up the blanks, but which was not done. But he made avizandum to us, whether it could be ordered to be delivered up to the creditors or to Kilravock on payment to them of the price? and, by a majority, we found not. President and Arniston found great fault with the first interlocutor, and that this right of pre-emption was not affectable by creditors, and the son's right of consequence not reducible by them: 2dly, That we could not take the discharge out of the son's pocket, nor consequently out of his agents, and deliver it. This was on the 15th, and the creditors having reclaimed, and offered to prove that the son was under back-bond to the father, which clearly made at least this money the father's, and craved diligence to recover it, and upon recovery to alter the former interlocutor; yet we refused their bill upon the second reason, me quidem inter alios renit. I had indeed some doubt as to the filling up the blanks; but since that was ordered by the Ordinary, and acquiesced in without reclaiming, I thought we could order delivery; and I also thought the first interlocutor right, though there had been no back-bond.