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Scottish Court of Session Decisions >>
Nicolson of Balcaskie and the Representatives of Hamilton of Bancrieff v The other Creditors of Hay of Park. [1698] Mor 13560 (17 February 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Mor3213560-044.html Cite as:
[1698] Mor 13560
Nicolson of Balcaskie and the Representatives of Hamilton of Bancrieff v. The other Creditors of Hay of Park
Date: 17 February 1698 Case No. No 44.
Found in conformity to Brown against Porterfield, supra.
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Halcraic reporsed Nicolson of Balcaskie and the Representatives of Hamilton of Bancrieff against the other Creditors of Hay of Park. It was an objection against an apprising as null, because, by the 31st act of Parliament 166I, allowance is necessarily required, and this was not allowed. Answered, The want of allowance is not by the act made to infer a nullity, but the certification is, that those allowed before it shall be preferred; and by a subsequent act of the same Parliament, viz. act 62d, all apprisings within year and day are brought in pari passu, without requiring whether they be allowed or not; and the Lords, ever since that act, have brought them in pari passu without regard to their allowance, as was found, 17th July 1668, Stewart. contra Murray, No 80. p. 8384.; 29th November 1672, Maxton contra Cuningham, No 29, p. 13551.; and November 1694, Brodie of Aslisk contra Wallace, See Appendix. Replied, The act of debtor and creditor bringing in all apprisings within year and day to be pari passu, does not dispense with the omission of the allowance; and if this preparative be laid down, it may be of dangerous consequence to purchasers, for there may be a latent expired apprising, and if valid without allowance, where shall he find it or come to the knowledge of it? But the Lords would not recede from the current of the decisions, and therefore brought it in pari passu with the rest, though it was not allowed to this day, much less within the sixty days after its leading.
Fol. Dic. v. 2. p. 332. Fountainhall, v. 1. p. 825.
