Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION II.

Alienation after Diligence.
Subject_3 SECTION I.

What Sort of Deeds reducible upon the Head of the Statute 1621, which protects inchoated Diligence.

Creditors of Hunter, Competing

Date: 9 January 1695
Case No. No 124.

Creditors, holding rights, to be completed by infeftment, cannot be prevented, by the intervening diligence of other creditors, from effectually taking infeftment, posterior to the bankruptcy of the granter.

An heir renounced intra annum deliberandi: pleaded for creditors, that this was a voluntary deed, which had the effect to bring in creditors within year and day, who otherwise would not. Found, that the heir was not bound to use the privilege.

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On a bill and answers between the Creditors of Mr James Hunter of Muirhouse only, and the Creditors that had both the father and son bound to them jointly, the son having given renunciations to his father's creditors on their charges against him; this was quarrelled by the other creditors, that he being a notour bankrupt, could do no deed to their prejudice, either to gratify, prefer, or bring in others pari passu with them, or omit and dissemble any defence.——The Lords found, seeing he did not refuse to renounce to one more than another, that the father's creditors' diligence in order to adjudge could not be stopped; but all these objections, were to be reserved contra executionem in the mails and duties when they came to compete.

December 16.1696.—The Lords advised the debate between the real and personal creditors of James Hunter of Muirhouse (mentioned 13th December 1695)* and found there did not arise any hypothic, or jus reale, to the personal creditors on his bank-routing, so as to impede those who had heritable bonds, to take infeftment on their precepts of sasine, even though they had charged with horning before the completing their rights by infeftment; seeing the act of Parliament 1621, discharges the debtor after diligence inchoate against him to do any voluntary deed or gratification to their prejudice; but here was no deed of the debtor's who had given the heritable bonds long before, and the creditors might uti jure suo quandocunque; and the act anent registrations in, 1617, did not lay any such necessity upon them or prescribe a time in which they ought to have taken infeftment; and that the creditors cannot be repute interposed persons for the debtor, seeing their precepts were procuratories and mandates in rem suam; and

* Fountainhall, v. 1. p. 688. voce Infeftment.

there was no sufficient evidence of fraud in their delaying to take their sasines, or in their doing it when they heard Mr James was dying, and under incumbrances; and found the act of Parliament 1696, regulates this case only pro futuro; and that the word declare does not import a retrospect, unless the act had expressly determined it should be so; and therefore preferred the real creditors.

July 15. 1697.—The creditors of Mr James Hunter of Muirhouse, who had both him and his son bound, pursue a reduction of the adjudications led by these creditors who had only the father's bonds, and not the son's, on this ground of nullity; that the son, after he was bankrupt and in the Abbey, being charged within his annus deliberandi to enter heir to his father, at the instance of those who were only his father's creditors, and not his, as to whom he might have refused to renounce, and craved the benefit of his annus deliberandi, yet he did it not; but fraudulently, and evidently to the prejudice of his own creditors, he immediately renounced to them also, whereby they came in within year and day with his own creditors adjudging; whereas, if he had defended, by taking the benefit of his year of deliberation, they would not have come in pari passu with the pursuers; and as he was then incapable to grant them any voluntary right, so he was as much incapable to grant them a voluntary renunciation, which brings in their diligence pari passu with his own creditors; and it falls under the prohibition of the act of Parliament 1621, and of the common law, by which bankrupt debtors might not omit a temporary defence, nor pay a sum before the term, l. 10. § 12. and l. 17. §2. D. Quæ in fraud creditor. The prætor constructs that to be fraud, quæ tempore ipso committitur; and l. 28. D. de verbor significat. Is quoque alienare dicitur qui non utendo amisit.—Answered for the father's creditors: That the apparent heir may take the benefit of his annus deliberandi, and defend against his father's creditors till it be run out; but no law obliging him to it, it is altogether in his option to make use of it or not as he pleases; and it is rather reputed fraudulent, where an apparent heir renounces to one, and refuses to renounce to another. See Stair, tit. Heirs. And, by the same rule, it would have been more suspicious, if he had renounced to his own creditors, and defended against his father's; and by the common law, l. 6. D. Quæ in fraud creditor. a debtor omitting to acquire, does nothing against the prætor's edict, which strikes only contra patrimonium suum diminuentes; and the design of deliberating being to discover whether the bæreditas be lucrosa or damnosa, young Muirhouse could soon resolve himself of that question. The son's creditors opponed the 106th act 1503, where for year and day the heir is not liable to his father's creditors.—The Lords assoilzied from the reasons of reduction, and found there was no fraud in young Muirhouse's giving in renunciations within the year to his father's creditors, 110 more than there was in doing it to his own. See Heir Apparent.

Fountainhall, v. 1. p. 656. 743. 786.