Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

John Kelso and Others
v.
The Laird of Bishop-Toun

Date: 12 January 1672

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Robert Kelso having infeft his eldest son John in his lands of Kelsoland, he and John dispone the lands to Bishoptoun, who granted bond for the price, to pay such sums expressed, the most part whereof were such as John was cautioner [for,] for his father: Many other of Robert's creditors being left out, did arrest in Bishoptoun's hand; and he suspending on double poinding, they alleged, That Robert Kelso, having disponed in meditatione fugæ, and becoming thereby a bankrupt, could not prefer one of his creditors to another, but according to their diligence; and so could not prefer those in which his son was cautioner to the rest; and as for his son's disposition, it imports not, being fraudulent, after the contracting of the other creditors' debts, and containing a clause that the father might burden. It was answered, That the Act of Parliament 1621 hindered no preference of creditors, except only as to those who had done diligence; and, albeit the son's infeftment be with the father's power to burden, yet the son having become caution in contemplation of that right, he might justly have taken a disposition from his father to relieve him, even though he were insolvent; and so might justly, upon the disposition he had, prefer the creditors to whom he became cautioner; neither was his father here a notorious bankrupt, or the deed done post fugam. The Lords preferred the creditors, conform to the bond, unless it were alleged that the father had been a notorious bankrupt, or the deed post fugam; in which case, they would hear the parties thereanent.

Vol. II, Page 44.