Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mr Patrick Home, Advocate, v. Mr George Dickson of Bughtrig
Date: 27 July 1694
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In the sale of Mr George Dickson of Bughtrig's lands, on the statute of bankruptcy, pursued by Mr Patrick Home, advocate,—it was alleged for Mr George, By the 17th Act of Parliament 1681, the debtor's whole estate must be valued and sold, else it cannot be known whether he be bankrupt or not; because they might leave out such portions of it as would do much more than pay his debts. And ita est Sir Patrick, in adducing a probation of Mr George's estate, has only led it in relation to his lands of Bughtrig, and omitted altogether a right of comprising he had on the estate of Lumisden, which Sir Patrick undervalued, because he had bought these lands without it. Two things stuck with the Lords, viz. 1mo. That, in such illiquid rights, where they had not obtained possession, it was hard to put an estimate and value thereon; for neither could the summons of the apprising be the rule, nor the value of the lands apprised, till its rank and preference were known, and the rent of the apprised lands. 2do. If the Lords, in the sale of bankrupts' lands, considered any more but their clear liquid accessible estates, whereof they were in possession, then not one of ten of those sales would be perfected; because they would always obtrude their claims and pretences they have by apprisings, or otherwise, upon third parties' estates. Which moved the plurality of the Lords not to regard such rights as sufficient to stop the sale. Some were of opinion that the word estate, in the Act of Parliament, comprehended jura, nomina, et actiones, as well as lands and immoveables, and that the whole behoved to be exposed to sale; though, if bidders do not occur for the whole, it might be sold in parcels. The case is of great importance, and has inconveniences on both sides. The balance must fall where they are least.
