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
v.
Brebner and Others

Date: 26 January 1751
Case No. No 199.

Payment in cash cannot be reduced on either of the statutes 1621 or 1696.

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George Forbes being creditor to David Farquhar in L. 193 Sterling, arrested in the hands of George Elmslie, and obtained decree of furthcoming for L. 94, the sum he acknowledged due; and that sum Elmslie offered to pay, if Forbes would discharge him of all he owed to Farquhar; which Forbes refused to do, being suspicious he owed him more; and proceeded to horning and caption, and imprisoned Elmslie in the tolbooth of Aberdeen. While the days of the charge of the horning were running, Elmslie had wrote a letter to Forbes, pressing him to comply with his proposal of discharging all he owed to Farquhar, and signifying he had the money ready to give him, and that if he would not take it in the terms offered, he would give it to other of his creditors; and be actually therewith paid Brebner and his other creditors.

Forbes coming to be informed of the payments made in these circumstances, arrested in their hands, and pursued a furthcoming before the sheriff of Aberdeen; wherein, beside libelling as in a common furthcoming, he insisted on this ground, That payments thus made were reducible upon the acts 1621 and 1696, and that therefore the sums so unlawfully paid should be made furthcoming to him; and the defenders having depend in the furthcoming, that they owed nothing to, Elmslie at the time of the arrestment, but acknowledged the payments made to them by him, during the currency of the pursuers diligence, agreeable to the information the pursuer had got; the sheriff assoilzied the defenders.

The cause having been advocated, the Lord Ordinary, before whom it came to be discussed, after advocating the cause, appointed memorials to be given in; and upon advising thereof, ‘sustained the defence, as the sheriff had done, and assoilzied the defenders.’

And the Lords ‘refused the reclaiming petition without answers.’

The question turned chiefly upon the construction of the act 1621, which statutes, “That where a dyvor shall make any voluntary payment or right to any person, in defraud of the lawful and more timely diligence of another creditor having served inhibition, or used horning, arrestment, comprising, or other lawful means, to affect the dyvor's lands or goods, or price thereof to his behoof, in that case the creditor shall have good action to recover that which was voluntarily paid in defraud of his more timely diligence.”

The words are strong, and at the first view would appear to comprehend payments made in pecunia numerata; and no case can occur more favourable for this construction than the present, where the payment was maliciously made. Nevertheless, as there is no instance where a payment in pecunia numerata has been found to be affected by any of the statutes concerning bankrupts, nor has any of our lawyers ever said so; so these words in the statute, having served inhibition, &c. or used other lawful means to affect the dyvor's lands, &c. were thought to limit the statute, so as only to concern conveyances of subjects which may be affected by such diligences; notwithstanding of the reply, that even taking the statute in the strictest sense, a debtor's ready money as well as his other affects, is affected by horning and denunciation, as at the date of the statute it fell under his escheat, which is burdened with the debt in the horning; as properly the escheat affected nothing to the creditor, although the Crown was, by special statute, subjected to the debt; and that the subjects, which the statute supposes to be affected, are only the debtor's lands, or his goods, or the price thereof, none of which comprehended his ready money; and as none of the statutes do restrain him from spending or squandering his ready money, it would have been strange to have restrained him from giving it to his creditors.

There was no occasion in this case to determine, what the case would be of payment made by delivery of moveables; though it was mentioned in the reasoning as a thing not to be doubted, that such payment Would fall under the statute. (See No 131. p. 1042.)

Kilkerran, (Bankrupt.) No 15. p. 62.