Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION III.

Decisions upon the act 5th Parliament 1696, declaring Notour Bankrupts.
Subject_3 SECT. IV.

Title to pursue Reduction on the act 1696.

Shaw
v.
Hall

Date: 17 November 1747
Case No. No 208.

A prior disponee, though uninfeft, entitled to challenge a second disposition, followed by infeftment.

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Richardson merchant in Kelso having in his person several adjudications, whereon he had not obtained infeftment, when, in the year 1734, his affairs fell into disorder, conveyed these adjudications to Gabriel Hall his creditor, in security of what he owed him; and as the law was at that time understood to stand, Hall was advised that Richardson's own right being personal, he was effectually denuded by the disposition; and accordingly, without using the precaution to obtain himself infeft by the superior upon the adjudications, he entered into possession. But the memorable decision between Bell of Blackwoodhouse and Gartshore* supervening in 1737, Joseph Shaw another creditor obtained from Richardson, in 1740, a disposition to the same subjects, and obtaining himself infeft upon the adjudications, and thereby acquiring a preference to Hall, as the law now is supposed to stand on the footing of that decision, pursued an action of mails and duties.

Gabriel Hall for his defence pursues a reduction of Shaw's right on the act 1696; on this ground, That Richardson was notour bankrupt at the date of the disposition to Shaw; the relevancy whereof was contested by Shaw on this ground, that his preference to Hall did not arise from his disposition from Richardson, to which Hall's disposition as prior was preferable, but from his infeftment from the superior. That being the case, his infeftment was not reducible upon the act 1696, as the Lords found January 1734, Creditors of Scott of Blair contra Colonel Charteris, infra h. t.

Answered, That it might be true, were Hall's allegeance no other than that Richardson the common debtor had become bankrupt within 60 days of Shaw's infeftment, the case would not fall under the act 1696, as that infeftment flowed not from the common debtor; and no more is determined by that decision. But here the allegeance is, that the common debtor was bankrupt at the date of the disposition to Shaw, which disposition to Shaw, Hall the first disponee was, as creditor to the granter upon the warrandice, entitled to reduce on the act 1696, and the disposition to Shaw being reduced, the infeftment obtained upon the adjudications fell of consequence.

Which the Lords ‘sustained, and found the reduction competent.’

Fol. Dic. v. 3. p. 57. Kilkerran, (Bankrupt) No 7. p. 53.

* Rem. Dec. v. 2. p. 15. voce Competition.