Scottish Court of Session Decisions

Subject_1 JUS QUÆSITUM TERTIO.
Subject_2 SECT. IV.

Among third parties having an Interest, who is preferable?

Ker
v.
Knows

Date: 5 February 1635
Case No. No 20.

When an obligation given to clear incumbrances specifies some of them particularly by name, and then subjoins a general clause of all other incumbrances, those particularly named are preferable.

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In this cause, which is mentioned January 29. 1635, No 36. p. 699, voce Arrestment, it was alleged by Knows, that he could not pay to the pursuer the sums acclaimed, as being arrested in his hands, and as addebted to him by Craw; because, by the bond produced, whereby he is constituted debtor to the said Craw, it is provided, that the said Craw, his creditor, should pay, and employ the same for relief of two sums addebted by the said Craw to two of his creditors, who had served inhibition against the said Craw, their debtor, before the alienation of the land made by the said Craw to this defender (and for the which alienation, the sum acclaimed, is a part of the price) and for purging of all other inhibitions executed against him, according whereto the defender has given bond to the said two creditors, specially expressed, for payment of their sums; and which bonds, albeit given after the arrestment made by the pursuer, must liberate the defender at this arrester's hands, in respect the writ, whereby the pursuer constitutes him debtor, is affected with this condition, and which he may yet lawfully do, in respect of the provision foresaid, specially expressed therein; and albeit the pursuer replied, that the provision of the bond is not tied only to these two special creditors, but also has joined there with others in that same clause, in a connected phrase, viz. “and for satisfying of all other inhibitions;” seeing therefore he had arrested, before he gave bond to these two special creditors, and that he had not only arrested, but also had served inhibitions long before any inhibition executed by any of these two creditors; therefore, in respect of his diligence, and that the others had done none, the defender voluntary binding himself to the two creditors, ought not to postpone the pursuer, but he ought to be preferred in the sum acclaimed. The Lords, notwithstanding of the pursuer's first inhibition, before the other two creditors to Craw, and notwithstanding of his arrestment before Knows gave bond to these two special creditors, found the exception relevant, and that the payment appointed by the bond, and to be made to the other two creditors specially mentioned therein, ought to take effect before payment could be craved by this arrester; albeit the bond unico contextu provided payment to be made to them two, and also to all other creditors who had served inhibition; which generality, the Lords found, could not take effect, but after the two creditors specifice named were first paid, seeing the defender was content to run the hazard of this pursuer's first inhibition; and so the special persons named were preferred, albeit there was no note of priority, appointing them to be paid, in the first place, by that bond, but only in ordine scripturæ their names were expressed first therein; and therewith, the said general clause immediately thereafter, without any directing of preference, or posteriority, and albeit there was no diligence done by any other but this pursuer.

Act. Craig. Alt. Belshes & Mowat. Clerk, Gibson. Fol. Dic. v. 1. p. 513. Durie, p. 750.