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. VI.

Securities granted in consequence of Anterior Obligations.

Mrs Rachael Spottiswoode
v.
James Robertson-Barclay

Date: 19 November 1783
Case No. No 221.

A precept of sasine granted by a bankrupt, in implement of marriage-articles long prior to the bankruptcy, found not to fall under the sanction of the statute. 1696.

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In 1772, by marriage articles entered into between Archibald Roberton of Bedlay and Miss Spottiswoode, he obliged himself to infeft and seise her “in an annuity or jointure of L. 150;” but for several years he delayed to fulfil that obligation. On 9th July 1779 he became bankrupt, according to the description of the statute of 1696, c. 5.; and it was not until the 24th day of the same month, that in impliment of the marriage, articles, he executed a bond of annuity, containing procuratory of resignation and precept of sasine. Still, however, failing to deliver, or to exhibit this bond, diligence by horning and inhibition was used, and a process of adjudication in implement instituted against him, in which a decree, would have been obtained, had he not at length made delivery of the bond; upon which, immediately after, (on 31st January 1780) Mrs Roterton was infeft.

In the ranking of Mr Roberton's creditors, Mrs Roberton claimed a preference under those titles; but the other creditors objected, That, by the operation of the above-mentioned statute, they were rendered void and null; and in support of the objection,

Pleaded: The bond in question, to use the very terms of the statute, having been “granted by the bankrupt, at or after his becoming such, in favour of (Mrs Roberton) a creditor (by the marriage articles) either for her satisfaction or further security, in preference to other creditors, is void and null.” For it is of no consequences, that by this bond a specific obligation has been implemented; agreeably to the decision in the case of Beg contra Peat, in the ranking, of Clyde's Creditors, in 1769, Fac. Col. No 95. p. 175. voce Ranking and Sale; and to the argument of Lord Bankton, (b. 1. tit. 10. § 104.) relative to the act of Parliament of 1621. Were the opposite principle to prevail, it would in a great measure frustrate a statute, hitherto esteemed so beneficial. One object of it was, to hinder debtors, on the eve of bankruptcy, or after it, from withdrawing from their creditors, by partial deeds of preference, those estates, the unincumbered appearance of which had allured them. But this, object could never be obtained, if, the production of an anterior latent obligation were sufficient to give validity to such preferences. Indeed, the statute has specially guarded against that device, by enacting, that in this matter the date of infeftment is to be held as that of its warrant; than which, surely, no obligation can be more specifical.

Answered: The spirit of the statute in question, apparent on comparison with the prior enactment in 1621, unites with its words to shew, that it was framed to prevent undue preferences among such creditors only as stand in the same situation. But the fulfilling of a precise obligation, ad factum præstandum, does not produce an undue preference over a creditor in whose favour no such right has been granted. Nor is the creditor really hurt by that voluntary act; since adjudications in implement, with which other adjudications cannot be ranked pari passu, would unavoidably have the same effect.

Were the intendment of this statute less consonant to its terms, the strict interpretation due to correctory enactments would confine itself to the latter; of which the strongest possible instance occurs in the case of payments made by bankrupts to favourite creditors; which, though clearly reprobated by the spirit of a law directed against fraud, is construed as not falling under the expression of that enactment.

The object mentioned on the other side seems erronously assigned to the statute of 1696. Had it been a true one, the antecedent period defined for the benefit of creditors would have been computed, not from the date of the infeftment, but from that of its registration, which only, of the two, is an act of a public nature, or calculated for the information of creditors; whereas, since registration may, as was strongly exemplified in the late case of Douglas, Heron, and Co. against Maxwell, (infra, h. t.) be postponed till the fifty-ninth day after sasine, the sixty days subsequent to infeftment may very readily elapse before it is possible for a creditor to avail himself of the statute. An effect which it has so little tendency to produce, should not be supposed to have been intended by an enactment. The regulation on the other hand, respecting the constructive date of the warrant of sasine, probably originated from a suspicion of fraudulent antedating. This doctrine is confirmed by the decision in the case of Houston and Company contra Stewarts, 20th February 1772, No. 220. p. 1170. That of Beg against Peat was determined on a specialty resulting from fraud; for which reason it had no influence on the succeeding judgment now quoted.

It is moreover to be remarked, that Mrs Roberton not only might have secured herself by adjudging in implement of her marriage articles, but that her husband's ultimately complying with her legal demand, was the only thing which prevented the completion of that legal security already begun. If, then, her present plea should not be admitted, the lost of her jointure would be a truly singular effect of obstinacy ceasing on the one hand, and a litigation on the other terminating when it had become useless.

The Lord Ordinary reported the cause to the Court; when it was

Observed on the Bench: An action of reduction founded on the statute of 1696, can extend no further than the like action instituted ex capite lecti, or ex capite inhibitionis; in neither of which cases could the deed in question have been challenged.

‘The Lords repelled the objection stated to the interest produced for Mrs Rachael Spottiswoode.’

The Creditors reclaimed, the Court being divided in opinion; and answers to their petition having been put in, a hearing in presence was appointed. But in the meantime the matter in dispute was compromised by the parties.

Reporter, Lord Ankerville. For Mrs Roberton, Solicitor General (Wight) Hay Campbell. Alt. G. Hay. Clerk, Home. Fol. Dic. v. 3. p. 61. Fac. Col. No 122. p. 193.