Scottish Court of Session Decisions

Subject_1 BANKRUPT.

Forbes
v.
Brebner, &c

1751, Jan. 26.
Case No. No. 26.

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Forbes, a merchant, being creditor to Emslie, also a merchant in Aberdeen, by decreet of forthcoming, used diligence by horning, denunciation, and caption, and 10th May 1748, Emslie, by a missive-letter, offered payment on certain conditions, which were refused; and on the 17th of May was taken and imprisoned; but before his imprisonment and after his diligence, he paid three other creditors, two in the beginning of May, and the third the very morning of the day that he was imprisoned; and Forbes alleged, that from the time of raising the caption, Emslie lurked and absconded. On getting notice of these voluntary payments, Forbes arrested in these three persons hands and pursued forthcoming, and referred to their oaths. They deponed that they owed nothing, but acknowledged the payments made to them as above; and he insisted in reduction of these payments and repetition of the money on the acts 1621 and 1696. The Sheriff gave the cause against him, and therefore he brought it before the Court by advocation; and coming before me, I also on the 25th sustained the defence and assoilzied. There are no words in the act 1696 that can apply to payment of money, which is not in the sense of law a deed, and if it could apply, the law was monstrously unjust in making it retrospect 60 days before bankruptcy; and the only difficulty was on the second branch of the act 1621, which has the words “voluntary payment,” but then it is restricted to effects that the pursuer has lawfully affected by legal diligence, whereas no diligence can affect the cash in the debtor's pocket, nor has there, these 130 years that have run since that act, been any precedent of such an action; and the pursuer having last night reclaimed, I am told, (for I was in the Outer-House) that this day the Lords refused, the petition without, answers.