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Scottish Court of Session Decisions >>
Earl of Aberdeen v The Creditors of Scot, and their Trustees. [1741] Mor 6794 (23 July 1741)
URL: http://www.bailii.org/scot/cases/ScotCS/1741/Mor1606794-005.html Cite as:
[1741] Mor 6794
Subject_1 INDEFINITE INTROMISSION. Subject_2 SECT. I.
Applicable in duriorem sortem.
Earl of Aberdeen v. The Creditors of Scot, and their Trustees
Date: 23 July 1741 Case No. No 5.
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Where a creditor having led an adjudication of his debtor's estate, upon his bond containing annuairent and penalty, had thereafter used arrestment upon the bond, and in a furthcoming drawn a certain sum, but which did not exceed the annualrents that had grown on the original bond after the date of the adjudication; and after that, had, in a ranking of the creditors, drawn a further Sum upon his adjudication; and having not yet recovered his full payment, had discovered other moveable effects of the debtor, on which he used a new arrestment. In the furthcoming upon said last arrestment, a question arising between him and the other creditors as to the imputation of the sums recovered on his former furthcoming, and in the said ranking; and particularly, if the sum recovered in the ranking upon the adjudication could be applied to the penalty, in prejudice of the other creditors recovering their principals and annualrents; it was found, ‘That the sums recovered by the furthcoming were to be imputed to the annualrents that grew upon the original bond, after the date of the adjudication; and that the sums recovered upon the adjudication were to be imputed in the first place to the remaining annualrents of the accumulate sum, as consisting of the penalty, as well as of the principal and annualrents due at the date of the adjudication, and, in the next place, to the said accumulate sum itself.’
Fol. Dic. v. 3. p. 314. Kilkerran, (Indefinite Payment.) No 2. p. 284.
