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. II.

What sort of Alienation falls under the sanction of the act 1696.

Forbes of Ballogie
v.
the Debtors of Forbes of Craigie

Date: 27 January 1715
Case No. No 193.

Delivery of goods and merchandice by bankrupts, in satisfaction of anterior debts, found to be challengeable upon the act of Parliament 1696.

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In the furthcoming at Ballogie's instance, against the Debtors of Forbes of Craigie, the pursuer extracted several accompts from the common debtor's comptbook, and referred the accompts to the defender's oaths, who deponed and acknowledged the articles and prices in the accompt; but added this quality, that the said articles were received and given them in payment and satisfaction of debts due by the common debtor to the defenders.

At advising, the quality relating to the terms and condition of the bargain, was found to be intrinsic; but the pursuer having repeated a declarator of bankrupt upon the 5th act, parliament 1696, ‘The Lords sustained the declarator.’

The defenders reclaimed by a bill, representing, that the said act 1696 did indeed annul voluntary dispositions, assignations, and other deeds made and granted by bankrupts at or after their becoming bankrupt, or 60 days before, in favour of creditors, either for satisfaction or security in preference to other creditors; but that act did not concern the defender's case, who had received goods or merchandice de manu in manum in the way of commerce; and that the word deed, in the act of Parliament, was only to be understood of writings, in the common meaning and acceptation of the word; otherwise the words of the act of Parliament would not be congruous, which bears dispositions, assignations, or other deeds made and granted, which words, deeds made and granted, can only be interpreted writings.

It was answered: Clauses in an act of Parliament are to be interpreted according to the reason and meaning thereof, and not captiously by the words. The reason is, that frauds are still frequent, notwithstanding of former laws against fraudful alienations; and therefore there is by that law very great extension made; and former laws, especially the act of Parliament 1621, expressed all alienations against the same to be null; and albeit deeds be frequently understood of writs, yet alienation of moveables and merchandice, by delivering de manu in manum, are also deeds of the bankrupt, and falling under the reason of the law; for in this case the common debtor in meditatione fugæ disposes of merchandice to a great value, for satisfying such creditors as he favoured, to the manifest defraud of others; and in the preceeding act, regulating deeds on death-bed, there is no question that alienation of heirship, as jewels, or other valuable moveables on death-bed, are regulated by that act, though no writ be interposed.

‘The Lords adhered to their former interlocutor.’

Fol. Dic. v. 1. p. 83. Dalrymple, No 132. p. 184.