Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Barbour and Cooper
M'Gowan

Date: 3 February 1764

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The question here was concerning the property of certain goods, Whether they belonged to one Thomson, a living man, or one Gardner, a dead man ? They were poinded by M'Gowan, a creditor of both Thomson and Gardner, as the property of Thomson, and they were confirmed by Barbour, as the property of Gardner the defunct. A competition about these goods, betwixt those two creditors, came before the Court, and at that time Barbour was only decerned executor to Gardner, so that any other creditor might have come and been joined with him in the confirmation.

The Lords found the goods to be the property of Gardner, after which Barbour completed his diligence by confirmation, by which, no doubt, according to the ordinary rules of law, he got a preference to all the other creditors; but, in respect of the uncertainty of the property, and that M'Gowan had appeared and disputed for a preference in the competition, the Lords unanimously found, that this had the same effect as if he had been confirmed with Barbour, and therefore brought him in pari passu.