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. IV.

Title to pursue Reduction on the act 1696.

James Roberton-Barclay,
v.
William Lennox

Date: 19 November 1783
Case No. No 209.

An infeftment found reducible under the act 1696, tho' the right on Which it proceeded was anterior to the right of the creditor challenging.

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Mr Roberton of Bedlay, in July 1778, granted an heritable bond to Mr Lennox of Woodhead, a creditor of his. Some time afterwards, Mr Roberton contracted debts to Mr Robertson-Barclay, and others.

Mr Lennox did not take infeftment on his security, till 28th May 1779, and within less than sixty days from that date, Mr Roberton was rendered a notour bankrupt.

In the ranking of Mr Roberton's creditors, Mr Robertson-Barclay

Objected to Mr Lennox's interest: The bond and infeftment fall under the sanction of the statute of 1696, and are null; the latter having been taken within sixty days of the granter's bankruptcy, as described in that statute. For, to use the words of the law, “all dispositions, heritable bonds, or other heritable rights, where upon infeftment may follow, granted by the bankrupts, shall only be reckoned, as to this case of bankrupt, to be of the date of the sasine lawfully taken thereon.” In the case of nova debita, it is true, the Court have of late determined, that sasine following within the sixty days on a security prior to that period is valid; but the novum debitum would have equally supported the infeftment, though the security itself had been posterior to the commencement of the statutory space: And thus the distinction of that case from the present is apparent. Nor is it of more importance in this argument, that the debt of the creditor challenging had not been contracted when the security was given; the enactment now recited being expressly calculated to guard creditors from the effect of latent rights, the publication of which, in due time, by infeftment, would have apprised them of their danger.

Answered: The act of Parliament in question, as being of a correctory nature, ought to be interpreted with strictness. Its declared purpose is, to protect creditors ‘against fraudulent alienations made in their prejudice;’ a description not at all applicable to deeds done before their debts existed. If then the statute in general have no relation to such anterior alienations or securities, it is plain that the clause above quoted is to be understood only in reference to those deeds which are subsequent to the right of the creditor who brings the challenge. The statute, as was shewn in the case of Mrs Roberton*, is not calculated, nor was it designed, to protect creditors against latency; but if its tendency had been such, nova debita, as well as earlier debts, would have fallen under it. Accordingly, the contrary doctrine is not supported by any decision of the Court.

The Lord Ordinary reported this question to the Court, when

The Lords, disregarding the distinction pleaded by Mr Lennox, ‘sustained the objection to the claim of preference made upon the heritable bond of relief in his favour, so far as the debts of the objecting creditors were contracted prior to the date of the sasine’.

Reporter, Lord Ankerville. For Mr Lennox, Ilay Campbell. Alt. C. Hay. Clerk, Home. Fol. Dic. v. 3. p. 61. Fac. Col. No 123. p. 195.

* Spottiswood against Robertson Barclay, infra h. t. (No 221.)