JAMES THOMAS MURRAY v JOHN MONCUR, MATHEW NEIL & Ors (Court of Session)

The parties to the bond of corroboration also became bound to pay all interests that might arise on the preferable bond for L.1400, and report discharges thereof to Murray, and pay the annual feu-duty of L.44: 5 : 6, exigible out of the subjects, and report discharges.

The Lord Ordinary reserved the defence applicable to the form of the conclusions of the summons, to be disposed of along with the defences on the merits, and ordered a condescendence.

The pursuer pleaded —1. In respect that John Moncur, at the date of his sequestration, was bound to pay all the interests to become due upon Neil's debt of L.700, the interests upon the prior debt of L.1400, and likewise the annual feu-duty of the subject of the security, and that the defenders were bound to pay a composition of 2s. 6d. per pound upon all debts then contracted by Moncur, the pursuer is entitled to claim that composition in the manner concluded for, upon all sums for which he would have been entitled to be ranked as a creditor upon Moncur's sequestrated estate.

M'Neill , for respondents.—1. As to the form of the summons, the pursuer can assign no present value to the security, or conclude for any definite sum; but these obligants can do so, and the pursuer has an interest to have the present state of uncertainty removed. The first conclusion of the summons, coupled with the 8th article of the condescendence, was sufficient to bring out the demand. The Lord Ordinary, in the first part of his interlocutor, had ordered payment of the composition on the interests past due.

M'Neill .—I go on the supposition that the Court is satisfied with the summons. Upon the other branch of the interlocutor there is an equitable exercise of power by the Lord Ordinary, and the defences cannot be prejudiced, as an assignation will be granted.