Sir Thomas Moncrieff v. George Lockhart of Carnwath, and other Creditors of Cockburn of Lanton
Date: 13 July 1698 Case No. No 9.
An eldeit son in see of an estate, granted a bond of corroboration to some of his own and his father's creditors. In a reduction it was found, that although oberatus and insolvent, as he was not bankrupt in terms of the act 1696, and the persons favoured were not confident, the bond was good.
Click here to view a pdf copy of this documet : PDF Copy
In the debate betwixt Sir Thomas Moncrieff, and George Lockhart of Carnwath, and other creditors of Cockburn of Lanton; Sir Thomas seeking to reduce an heritable bond of corroboration granted by young Lanton, to sundry of his own and father's creditors, in regard he could not instruct him notour bankrupt at the time, he having neither retired to the Abbey, nor being under diligence, he recurred to this ground, that he was then materially bankrupt, in so far as he was insolvent and oberatus above the value of his estate; after which he could do no deed in prejudice of his creditors.—Answered, This fell under no part of the act of Parliament 1621, for it was not a gratuitous deed in favours of a confident person, nor was it in prejudice of creditors their anterior diligence against him; and so being against no law, his disponing cannot be quarrelled, and consequently the right and conveyance he made to Sir Thomas stands good, though it was gratuitous quoad young Lanton, who got nothing for it. Sir George M'Kenzie, in his Observes on that act of Parliament 1621, thinks a gratuitous disposition granted by an insolvent person, falls under that act; and Stair, in his Institutions, p. 81.* declares such dispositions quarrelable.——Yet the Lords, by plurality, (sundry diffenting) found Sir Thomas not being a confident person to Lanton, that the disposition and right he received from him could not be reduced on the head of mere insolvency, where he was not under diligence nor had retired; nor had the other marks now contained in the standard made for bankrupts by the late act of Parliament. (Vide infra Div. 2. Sect. 5. inter eosdem.)
