Scottish Court of Session Decisions

Subject_1 INFEFTMENT.

Claims on Sir James Kinloch's Estate

Date: 15 February 1750
Case No. No. 2.

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George Dempster, in November 1742, got an heritable bond from the deceased Sir James Kinloch for L.20,000, and was infeft; but Sir James had immediate use only for L.8735, which he got with an obligation for the remainder on demand; and Dempster paid up that remainder with interest, and retired his obligation with a discharge in December 1743. Lady Kinloch was infeft in her liferent annuity about the same time, but Dempster's sasine was first registrated, and so preferable; and therefore the Lady objected to Dempster's infeftment, that it could only be sustained for the sum truly lent before the sasine, and that he was not creditor at that time for any more, in terms of the act 1696, for declaring notour bankrupts; but the majority of the Court (inter quos ego) thought that he was creditor from the date of the bond for the whole sum, and Sir James creditor in the counter-obligation, and that this fell not under the act 1696, which concerned only infeftments in general for debts to be contracted; and therefore preferred Dempster. But afterwards, 13th June 1750, the Court altered, and preferred my Lady Kinloch as to all the sum except the L.8735, which in effect finds that for all the rest he is but a personal creditor, Vide inter eosdem voce Competition, and voce Forfeiture.

See Notes.