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Scottish Court of Session Decisions >>
Alexander Piper of Newgrange v Scott of Hedderwick. [1704] 4 Brn 574 (4 January 1704)
URL: http://www.bailii.org/scot/cases/ScotCS/1704/Brn040574-0067.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Alexander Piper of Newgrange v. Scott of Hedderwick
Date: 4 January 1704
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The said Alexander having, at the roup, bought the lands of Newgrange, formerly belonging to Sir Francis Ogilvie, he raises a reduction and improbation against sundry of the creditors, and particularly against Hedderwick; and, seeking out certification against them, for not production, the creditors apply to the Lords by a bill, complaining, That Mr Piper had taken a very unusual method to pay them, in seeking to annul their rights; and that a purchaser at the sale of bankrupts' lands could not pursue reductions and improbations, but only a multiplepoinding, in which he may call the creditors; and, after they bave debated their preferences, and are ranked conform to their respective interests and shares in the price, he may either consign or pay accordingly;—and that they had produced their adjudications and registrate bonds; but he was insisting against them for not producing the principals, and the grounds and warrants of their decreets, such as the summons and executions, &c. in which he had no interest; and the production they had made was sufficient to exclude him.
Answered,—He was necessitated to follow this course; for Sir Francis, the former heritor, kept up the writs and charter-chest from him; and thir creditors were not in the decreet of ranking; and he had paid out already a great part of the price, and ought to be secured in his purchase.
The Lords thought this remedy of pursuing the creditors by a reduction somewhat extraordinary, he having granted bond and caution to pay them according to their preferences; and, to take the advantage of a certification, would be ill payment. But, remembering that William Hay of Drummelzier, who bought the barony of Dunse at the roup of Sir James Cockburn's estate, had pursued such an action of reduction and improbation, they desired to be informed, ere they proceeded farther, whether the act of roup was in his title in that process, or the real creditors' rights which he had transacted and bought in; for, though such a pursuit, qua purchaser at the roup, may be unequal, yet, if the process be as assignee constituted by the creditors to their debts, that may be a sufficient title ad fundandam litem. And, how far a decreet of sale may be the title, the Lords resolved to consider the same after a hearing.
