Scottish Court of Session Decisions

Subject_1 COMPETITION.

Creditors of Sir James Dunbar

1736, Dec. 1.
Case No. No. 1.

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The Lords altered the Lord Ordinary's (Newhall) interlocutor, and found these creditors preferable according to their diligence, and not pari passu, as he had found;—and they were unanimous except the Ordinary, (the President absent.) Some thought the defunct could not by any deed however explicit prefer his creditors pari passu, and defraud them of the effect of their diligence to be raised; but there was some difficulty, because the creditors could not subsume in terms of either the act 1621 or 1696. But that which determined the whole was, that the disposition was not to the creditors, or to their behoof, but to Oliphant, with the burden of debts, which made him personally liable, though only in calorem,—but gave the creditors no right to the subjects disponed; and Oliphant behoved to pay the creditors according to their diligence, as in the known case of executors, and the case of heirs cum beneficio, as was decided in 1724, Mrs Scott against Sir Alexander Burnet of Leys; and as in the decision mentioned in the papers 17th December 1675, Creditors of Masterton against Creditors of Alice Thin, with respect to Alice Thing's own proper effects.—(Dict. No. 9. p. 11830.)