Reduction upon the Act 1621, whether competent at the instance of Creditors having done Diligence, against one another.
John Henry, Cordiner in Edinburgh, v. John Glassels and George Coning, Merchants in London
Date: 22 December 1709 Case No. No 155.
Found, that a party having received a voluntary assignation from his debtor, in security of bygone debt, and having recovered the sum assigned, might, notwithstanding, after the debtor's decease, confirm the same sum, as executor creditor to him, and by the confirmation support the assignation, quarrelled upon the act 1621, at the instance of a co-creditor insisting for repetition.
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Thomas Glassels, merchant in Glasgow, having, in security of bygone debt due by him to John Glassels, his brother, and George Coning, assigned to John Glassels, his interest in the capital stock of the African Company; by virtue of which assignation the money was uplifted from the commissioners of the equivalent: John, Henry, creditor to Thomas Glassels, raised reduction against John Glassels of the foresaid assignation, upon the act of Parliament 1621, as being granted to a conjunct person, after Thomas Glassels was at the horn for the debt due to the pursuer. The defender, for supporting the assignation, produced a confirmed testament, wherein he and George Coning are confirmed executors qua creditors to Thomas Glassels, the common debtor.
Alleged for the pursuer:—The sum uplifted by the defender by virtue of the assignation, could not be confirmed as in bonis defuncti; in respect the defunct was denuded by the assignation.
Answered for the defenders:—Although they had taken assignation from the defunct; yet, if they thought it lame or defective, they might pass from it, or not make use of it, and establish a better title by legal diligence as they thought fit: And the pursuer, who quarrels the assignation, can never pretend that the goods were not in bonis defuncti, because he was denuded by it. For, how can that deed turn to the pursuer's advantage, that he impugns, as done to his prejudice? Can he both reduce it, and crave the benefit of it at the same time? This is inconceivable: The most that he can pretend to is, to have it taken out of the way to afford him access to the subject.
Replied for the pursuer:—The act 1621 doth not simply annual the rights craved to be reduced, so as to make the property of the subject disponed return to the debtor; but only obligeth the receiver of the voluntary right, to make furthcoming what he recovered thereby, to the creditor that used the first diligence. Sir George Mackenzie, in his treatise on that statute, is of this opinion; and also thinks; that a disposition made to a posterior creditor, accrues to him that had done anterior diligence: Which is consonant to the current of decisions, December 18, 1673, Creditors of Tarpersie contra L. of Kinfauns, No 29. p. 900.; July 1673, Street and Mason contra Lord Torphichen, Stair, v. 2. p. 210. voce Reduction; January 18, 1678, Kinloch contra Blair, No 14. p. 889.; June 16, 1676, Erskine contra Reynolds, No 79. p. 960. And the defenders cannot repudiate the assignation after their acceptance of it, and recovering payment by virtue thereof.
Duplied for the defenders:—The intendment of the act of Parliament is, That no partial gratification in favours of a creditor, shall be prejudicial to a co-creditor's more timely diligence; and not that it shall accrue to him who quarrels it. The effect of repetition proceeds only upon supposition that the party favoured hath no other title in his person to defend against repetition: Whereas the defenders have a separate title, viz. A confirmation qua executors creditors. Sir George Mackenzie in his treatise, argues only upon the nice point of vinco vincentem, for the preference of a first to a second compriser, betwixt whom a voluntary right intervenes: Whereas had the competition been with the person having that voluntary right, the preference could only have operated the taking that out of the way; and not the making use on't as an accrueing right, to exclude the assignee himself, clothed with another right in his person. The cited decisions do not meet the present case: For there the creditors quarrelling the dispositions had done no diligence, and the receivers of the dispositions had no other right to compete upon; so that the making the dispositions accrue proportionably to the whole creditors, did not hinder the receivers of the dispositions to drop these, and betake themselves to other titles.
The Lords found, That John Glassels and Coning might legally confirm a executors-creditors to Thomas Glassels, and support the assignation by the confirmation.
