Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Creditors of James Hunter of Muirhouse Competing
Date: 13 December 1695
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[See the prior and posterior parts of the Report of this Case, Dictionary, page 1023.]
The competition between the personal Creditors of Mr James Hunter of Muirhouse, and Mr Bruce and others, who stood infeft, was reported. The reason of reduction against the real rights was, That their seasines, being taken on heritable bonds, containing precepts of seasine, the infeftment was not taken till a few days before Mr James's death, when he was not only notourly bankrupt, and his debts had emerged, and he was charged with horning, but was after they knew he was broken, and so were participes fraudis; and after which knowledge they could do nothing to impede the personal creditors from coming in pari passu with them.
Answered,—They did nothing but sibi vigilare; and his condition is not to be considered as it stood the time of taking the seasine, but initium negotii est spectandum, when I lent my money, and got his bond bearing infeftment; at which time, he being under no suspicion, I might perfect my security when I pleased, he being denuded ab ante: and I took no gratification or voluntary deed from him after his bankruptcy; seeing parties may uti jure suo quandocunque; and, though the Act of Parliament 1617 ordains seasines to be registrate within sixty days after their taking, yet it limits no time for taking seasine after the granting the precept.
The Lords would not proceed to determine this day, because, three of the Lords being creditors, there was not a sufficient quorum; yet they signified their judgment so far, that they did not think the reason of reduction relevant as our law yet stood; but that the real creditors behoved to be preferred: And it is obvious, in the case of an inhibition, that it cannot reduce anterior obligements, unless the nexus of the actio Pauliana, for rescinding fraudulent deeds, be stronger than it.
