Disposition by a Bankrupt in favour of his whole Creditors.
The Creditors of Balmaghie v. William M'Ghie
Date: 22 February 1749 Case No. No 247.
An estate adjudged, without regard to a previous disposition to a trustee for behoof of the creditors at large.
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Alexander M'Ghie of Balmaghie disponed his estate to trustees, “providing that they should be obliged to hold compt for their intromissions to his creditors, so often as they should be defined; and to him for the superplus of what money should arise from the sale of the foresaid lands, if any were, after payment of the debts.” And they disponed it to William M'Ghie merchant in Edinburgh, in the same terms.
Robert Carmont merchant in Kirkcudbright, in right of several debts contracted since the disposition, obtained an interlocutor of an Ordinary, adjudging the estate.
Pleaded in a reclaiming bill for William M'Ghie. The debtor was divessed of the estate, before contracting the debts, for which the adjudication is craved; and his creditors cannot affect any thing which does not belong to him: He has only a right to have the superplus of the value accounted for; and this they may affect. An adjudication of the estate is not competent, as it is not now in the debtor's power to offer a part equal to the sum; and yet this is a right competent to him, wherever there is room for an adjudication.
The Lords adhered.
Petit. H. Home.
Fol. Dic. v. 3. p. 63. D. Falconer, v. 2. No 60. p. 64.
