Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION II.

Alienation after Diligence.
Subject_3 SECT. IV.

Reduction not Sustained, even after Diligence, if the Debtor be not Insolvent, nor rendered so by the Alienation.

Sir James Cockburn of that Ilk,
v.
Lord Ross, Alexander Miln of Carridden, and other Creditors of Hamilton of Grange

Date: 12 February 1686
Case No. No 135.

A disposition granted after horning is challenged. Found that one horning is not sufficient; and that it must be otherwise shown, that the party was obæratus and bankrupt.

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Sir James Cockburn of that ilk, his reduction contra the Lord Ross, Alexander Miln of Carridden, and other Creditors of Hamilton of Grange, being heard in præsentia, and he founding on an old disposition of relief, given in 1641 by Sir James Hamilton of Grange to the Lord Forrester; the Lords found the posterior disposition given by John the son, with infeftment following thereon, preferable to this old relief; unless Sir James Cockburn would subsume, that it was made real by an infeftment, and so not merely a personal right. Then Cockburn repeated a second reason of reduction, that Grange was standing registrated at the horn before this disposition.—Answered, This horning could never hinder him to dispone, because he was only denounced at Edinburgh, and not at Linlithgow, where the lands lie, and he dwelt, and so no escheat, but only caption, could follow.—Replied, It was enough to produce the effect of the act of Parliament 1621, against bankrupts.——The Lords found this not sufficient, unless they would conjoin with it, that he was then obæratus and bankrupt, one horning not being sufficient for that.

Fol. Dic. v. 1. p. 77. Fountainhall, v. 1. p. 402.