Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION II.

Alienation after Diligence.
Subject_3 SECT. VI.

Reduction upon the Act 1621, whether competent at the instance of Creditors having done Diligence, against one another.

Alexander Deans
v.
Jean Hamilton

Date: 14 January 1703
Case No. No 154.

One was charged to provide his wife in a liferent, in terms of their contract of marriage; thereafter he was charged by another creditor. He disponed a bond to his wife: Not reducible, being granted in favours of the creditor who had done most timely diligence.

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Rankeillor reported the competition betwixt Alexander Deans in Prestonpans, and Jean Hamilton, relict of Mr Robert Deans, advocate. By his contract of marriage with her, he was bound to provide her to the liferent of 20,000 merks; and being charged by the friends, at whose instance execution was appointed to pass, he gave her an assignation to a bond of 1000 merks owing to him by Hamilton of Caldcoats. Alexander Deans being a creditor, and charging him with horning, he suspends, and in regard he could not find caution, he consigns a disposition omnium bonorum in place of a cautioner, in the terms of the act of sederunt; and Alexander at last, obtaining a decreet of suspension, he arrests the sum due by Caldcoats to the said Mr Robert, and craves preference, on these grounds, that he had charged him with horning before he made the assignation to his wife, and that being a voluntary gratification of a debtor obæratus, it must be reducible on the act of Parliament 1621, being inter conjunctas personas, and in prejudice of his prior diligence—Answered, Though my assignation be posterior to your charge, yet it was not a voluntary deed, but in obedience to a charge of horning, prior to yours, for implement of his contract of marriage. 2do, It falls not under the act 1621, because it was for a most onerous cause, she being creditor by her contract of marriage in the annualrent of 20,000 merks, and this is all she can get for it; and though her husband had disponed this to the said Alexander to procure his suspension, prior to her right, yet that can be no ground of preference; for that assignation was never intimate, and her's was the first complete right.—The Lords preferred the relict, unless Alexander could prove him bankrupt at the time by absconding, retiring to the Abbey, being in prison, or the like qualifications contained in the act of Parliament 1696.

Fol. Dic. v. 1. p. 79. Fountainhall, v. 2. p. 173.