Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION II.

Alienation after Diligence.
Subject_3 SECT. V.

What Diligence sufficient to found Reduction upon the act 1621.

William Hamilton Writer in Edinburgh, and Colin Mackenzie Goldsmith there,
v.
Sir James Campbell of Aberuchil

Date: 23 February 1709
Case No. No 150.

Reduction on the act 1621 sustained upon an unregistered horning.

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In a competition betwixt William Hamilton and Colin Mackenzie, as assignees by Sir David Thoirs advocate, to a debt due to him by the Lady Greenock, and Sir James Campbell, who craved to be preferred upon an arrestment posterior to the intimation of their assignation, upon this ground, That the assignation was granted by Sir David in the abbey, after a charge of horning given to him by Sir James Campbell, and so reducible upon the act of Parliament 1621.

Alleged for the assignees, 1st, An unregistered horning could have no effect, more than an unregistered inhibition, against onerous singular successors: Especially considering, that Sir David Thoirs was not insolvent, Stair, Instit. L. 4. tit. 35. § 18. And the act of Parliament 1621 concerns dyvours. 2dly, If Aberuchil, who is secured for his money by other rights and diligences, shall be preferred to the assignees, as to the debt due by the Lady Greenock, he ought to assign to them his other rights and diligences for operating their payment: As a creditor, who, having an universal infeftment, attacks and carries away a particular subject, whereto another creditor had right by a posterior infeftment, is bound to assign to that other for making up quod illi deest by the eviction.

Answered for Sir James Campbell, 1st, Horning without denunciation or registration, is a sufficient ground to reduce upon the act 1621; February 21. 1623, Craw contra Irving, Durie, p. 48. voce Competition; and in the case, Chaplain and Bateman contra Creditors of Provost Drummond, (infra b. t.) 2dly, Sir James is not bound to assign, in respect his payment is out of the debtor's own effects, whereby the debt is extinguished.

Replied, Though the effects out of which Sir James is seeking payment were once the debtor's, they belonged to the assignees at the time Sir James affected the same: And therefore he who comes in upon their right, per æmulationem, should assign his other funds to them.

The Lords sustained the reason of reduction, and preferred Sir James Campbell; but ordained him to assign his other security to William Hamilton and Colin Mackenzie, upon receiving payment from them. See Personal and Transmissible.

Fol. Dic. v. 1. p. 79. Forbes, p. 325.