Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION II.

Alienation after Diligence.
Subject_3 SECT. II.

Payment, whether Challengeable.

Grant
v.
Smith

Date: 21 July 1758
Case No. No 132.

A bankrupt found entitled to sell growing corn to creditors who were ready to poind.

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A debtor being pressed by his creditors, who were about to poind his effects, made partial sales to several of them of so much of his corn, which was yet green, as might be equivalent to their debts; and the corns were delivered to the buyers by a sort of symbolical tradition, on the sport. These corns were re-purchased from the creditors by a tenant, who, at the next term, succeeded the debtor in his farm. Another creditor, several months after, thinking that these sales could be no bar to his diligence, proceeded to poind the corns, but was stopped by the tenant who had purchased them.—In a competition, it was pleaded for the poinding creditor, That the law will not sustain the voluntary and partial deeds of an insolvent debtor; and these sales must be reducible upon the act 1621, as the property could not be transferred to the purchasers, till after they came to take possession of the corns, by reaping them, which was after the poinder's diligence.

Answered, The sales were publicly made, and not clandestinely to give a preference to particular creditors; but some creditors having their diligences ready to poind, which would have made them preferable to this competing creditor, the corns were fairly sold to them in payment of their debts, and delivered over to the buyers, remaining upon their risk.

The Lords sustained the defences for the purchasers.

Fol. Dic. v. 3. p. 52.