Decisions upon the act 5th Parliament 1696, declaring Notour Bankrupts.
Subject_3 SECT. VIII.
Effect of Reduction on the act of 1696.
William Hamilton of Wishaw v. The Creditors of Cleland
Date: 8 February 1706 Case No. No 227.
A disposition by a bankrupt to some of his creditors, was found null ab initio upon the act 1696; and was not sustained, as a title to the bygone rents, in medio at the sentence of reduction.
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In the ranking of the Creditors of Cleland, William Hamilton of Wishaw craved preference for the sum of L. 721: 1:9 Sterling, and the annualrents on it resting by Cleland, as collector of supply for the shire of Lanark, to the commissaries of the army, and assigned by them to him, upon these grounds: 1mo, The collector's estate was really affected, and liable to quartering, at the instance of the Fisk, for his intromissions with the supply, a public privileged debt, as well as the estates of heritors are liable for their several proportions: For the King's customs were found preferable to other creditors, June 10. 1631, Peebles against Scot, Durie, p. 589.*; and the supply is no less privileged. And, although the commissioners of the shire, in obedience to the act of Parliament, name the collector, he, as well as these his constituents, is directly liable to the Fisk and its general receivers. So the estates of Lords of Erection, Sheriffs, Bailies of Regality, their Deputes and Clerks, were always found liable, and quartered upon for the whole taxation imposed upon their Erections or Jurisdictions, however small their property was; and as collectors had relief from vassals, tacksmen of teinds, and others, conform to their particular proportions. Several acts of Parliament, and Convention of Estates, appoint quartering, and other real diligence, against the Collector, for his intromissions; particularly the Act of Convention 1678, ordains quartering upon his estate till he gave up a list of deficients; consequently here where there are no deficients, the quartering must continue till he pay his intromissions. And the act 3. Par. 3. Cha. II. provides, That the Collector, retaining in his own hands any part of the supply longer than a month after his receipt thereof, shall be liable in ten for each hundred pound, and to quartering or other diligence beside. 2do, As the Fisk had real and preferable diligence against the Collector's estate, the like is competent to Wishaw, who is come in place of the Fisk, by a discharge and assignation from the General Receivers, upon payment made to them. For the real privilege and quality must accompany the debt wherever it goes; which is kept up against Cleland, notwithstanding the discharge, whereby Wishaw as cautioner, and the commissioners of the shire are liberate. And if the privilege were personal to the Fisk, and not communicable to assignees, the commissioners who are but assignees themselves, could not have it: Now if it can go to one assignee, why not further to others by translation? Yea, by the known custom of the treasury and exchequer, a sheriff or any person upon making his æque, and getting discharge; his relief for what is paid continues debitum fundi, as effectual to him as if he had received an assignation at the fitting of the æque. And the privilege or real quality of a debt hath been often found transmitted by assignation; Anderson and Provan against Town of Edinburgh, Stair, v. 1. p. 260. voce Tack; Rae contra Heritors of Clackmannan, Stair, v. 1. p. 303. voce Public Burden. And justly, seeing law gives the privilege to the debt, and not to the persons. 3tio, Wishaw is preferred by a disposition to him from Cleland, for payment and relief of his debts and cautionries: Which disposition is still valid as to the said public debt, albeit reduced upon the late act anent bankrupts, in so far as concerns his debts and cautionries. For the disposition as to the said public debt is no voluntary preference of one creditor to another, but in effect a declaring of that preference formerly given by law. 4to, Wishaw ought at least to be preferred to the rents and duties that were in the hands of the tenants or factor, at the time of pronouncing the interlocutor, February 7. 1705, whereby the voluntary disposition granted by Cleland was reduced, and the omitted creditors admitted to a share of the estate. In regard the disposition was a good title to hinder repetition as to bygone rents preceding the reduction,
* Voce Privileged Debt.
which were bona fide percepti by Wishaw; and since the public's possession by a party of dragoons, and the possession of the factor put in upon Wishaw's application must be understood to be his possession, so long as his title stood unreduced; Wishaw deserved this much; at least from the creditors, whose negotium gessit, in keeping the lands from being laid waste, by removing the quartering party upon the faith of his right by the disposition.
Alleged for the other Creditors: The clause in the acts, about quartering upon the Collector, infers no more a real burden upon his estate, than lands purchased from brewers are burdened in the person of the singular successors, with the rests of excise due by the disponers to the public, as a debitum fundi: For a brewer is subject to quartering for the excise, but his heritage is not really affected therewith; nor is the cess a real burden upon the land-rent beyond each heritor's valuation. And therefore the particular quota of cess imposed on the shire of Lanark can only affect the Collector's estate in that shire, according to the proportion of his valuation as an ordinary heritor. And the other executions of quartering against him are only personal diligence. For the acts not being express as to the Collector's lands, must be strictly interpreted, according to the rule, in dubio contra Fiscum est respondendum; especially where the Fisk is sufficiently secured by a real burden upon the whole lands in the shire for their respective proportions, the personal obligement of the Collector and his cautioners, and summary execution against them. If the lands of Collectors be liable, those of Tacksmen, Commissiaries of the army, &c. must run the same fate; and their singular successors smart by the bargain. Yea, these might be made liabel at their author's pleasure by the cunning or malicious abstracting of discharge. The faith of our records would signify little to purchasers, who beloved to be at the endless trouble of expiscating, if any of their authors were Collectors or Tacksmen, and how their accounts were cleared. As to the allegeance, That the customs of imported goods have been found real: That is only as to the subject bought, which corresponds only to Cleland's quota as hesitor. But then again, whatever may be as to the petty burdens of moveables of final value, which may be disappointed by clandestine abstractions, that is not to be extended to the running the security of heritable rights. 2do, What Wishaw might have obtained if the Fisk had not got payment upon any other terms is not the question, but only whether by payment simply made to the Fisk the privilage is extinct. Which must be allowed, for these reasons; Payment, by whomsoever made, extinguisheth the obligement; so as in the Roman law, a particular constitution was found necessary to introduce the Beneficium cedendaram actionum. Far less can the creditor's privilege pass to the cautioner, making payment simply, without securing himself by a real relief. Thus an heritor's hypothec for an year's rent, after he discharged the tenants, is not competent to an appriser without infeftment or possession, against merchants who bought the farm for the price, July 29. 1675, E. Panmure contra Collison, Stair, v. 2. p. 362. voce Right in Security. And the shire, which was principally bound to the public, being discharged upon Wishaw's paying eorum nomine, the privilege of the debt is extinct, though itself may subsist as a private personal debt, quoad those bound in relief to the payer. 3tio, The disposition being made by a notour bankrupt, and so absolutely null by the act of Parliament 1696, doth not alter the case. For it was found, Man against Reid, No 226. p. 1183. That the receiver of such a disposition of moveables could not by virtue thereof come in pari passu with other creditors doing diligence posterior to the disposition and possession thereon, which was found to operate nothing. 4to, Wishaw can have no pretence to the rents preceding the falling of his disposition; because that was a legal nothing: A disposition by a bankrupt in the terms of the new statute being simply void and null ab initio, that it could not subsist as a security. Nor is the dragoon's or factor's possession to be esteemed Wishaw's possession; for quartering is military compulsion, and no title of possession of the rents of lands. The party quartered cannot uplift a sixpence of the rent, or poind so much as a hen-chicken for payment of the cess: All they can do is to uplift for their own locality at the established rate of so much per diem. Besides, the party could not quarter after the debt was extinguished by Wishaw's taking a discharge from the public; and there was a year's interruption betwixt the quartering and the factor's possession. As to the factor's possession, it was alike to all creditors; for the factory bears expressly to be granted for the behoof of such as should be preferred in the ranking: And Wishaw, being cautioner for his son-in-law, can have no consideration for his relieving the lands of quartering; because, qui proprium negotium gessit non repetit. Nor can an adjudger get from a co-adjudger within year and day the expence of changing the holding from simple to Taxward, February 20. 1683.* 5to, Any action competent to the Commissaries for the cess against the Collector was prescribed, by the elapsing of three years since the same fell due before the assignation in favour of Wishaw.
Answered for Wishaw, The triennial prescription is only in favour of heritors, and cannot be stretched to exeem Collectors who are liable by law, and by bond and caution given to the public. 2do, The prescription was interrupted by Cleland's disposition, and decreets against him.
Replied for the other creditors, Though the personal obligement of Collectors and their cautioners may endure till the long prescription, the privilegiata obligatio et condictio ex lege expires after three years, 2do, The disposition could be no interruption of the three years prescription, because the act 1701, allows only of interruption by horning and denunciation.
The Lords, found the disposition granted by Cleland to Wishaw, and other persons therein named, null ab initio, both as to the preference thereby given for the sum due by Cleland, as Collector of the shire to the Commissaries of the army, and as to the other debts therein contained. And therefore found, That Wishaw and the other creditors in that disposition, had no right thereby to the bygone rents of the estate preceding the interlocutor, February 7. 1705. See Privileged Debt. See Prescrpition.
