Scottish Court of Session Decisions

Subject_1 FRAUD.

Creditors of Cordiners of Canongate
v.
Thomas Grant

1747, June 5.
Case No. No. 16.

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After these cordiners were notour bankrupts, though not in the terms of the act 1696, they disponed to trustees for behoof of all their creditors nominatim their whole effects real and personal, and by the disposition the creditors renounced any claim to future quarterly payments or new upsets, and any further action against the Corporation, and the trustees were not liable in omissions, but after two years might be charged by the creditors. This disposition was next day intimated to their tenants, and some days after Thomas Grant, who would not accede to this settlement, arrested, and a competition ensued. Their intimation was prior in time and therefore preferable, and the disposition was not reducible on the act 1696 or 1721, for there neither was nor could be horning at Thomas Grant's instance, whose term of payment was more than two months after his arrestment;—but he insisted that the disposition being by notour bankrupts it was reducible at common law; 2dly, That no creditor could be obliged to accept of the conditions of renouncing the quarterly payments, upsets, and future acquisitions, nor to free the trustees of omissions. Answered: A reduction at common law is only to the effect of bringing in the creditors pari passu, and therefore a disposition to them all cannot be reduced: There is no fraud, and many decisions were quoted, particularly one in 1743, Snodgrass against The Creditors of Beatt, which I had forgot, but wherein Kilkerran was very particular;—To the second, the quarterly payments, (which were 7s. per quarter) were only charity for maintenance of their poor, and without such a transaction there could be no new upsets nor future acquisitions, but the Corporation must die out,—and the trustee may now be changed at the creditors pleasure. Replied: A debtor notoriously bankrupt cannot prejudge diligence either done or be done by any of his creditors, and quoted also some decisions. The Lords pretty unanimously sustained the disposition, and repelled the objection to it, me referente.