Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION V.

Decisions upon the clause of the Act of 1696, declaring Heritable Bonds, &c. to be held as granted of the dates of the Sasines taken upon them.

Dickson and Others, Creditors of Castle-Somerville,
v.
Margaret Mitchell and Others, heirs portioners of Mitchell of Alderston, superior

Date: 7 November 1749
Case No. No 264.

In the case of a disposition to a superior, the 60 days are computed from the date of the resignation ad remanentiam.

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In the ranking of the Creditors of Somerville of Castle-Somermerville, the Creditors having repeated a reduction on the act 1696 of a disposition by the common debtor to Mitchell of Alderston the superior, containing procuratory of resignation ad remanentiam, and instrument of regnation following thereon, produced by the representatives of the superior, it was controverted from what time the 60 days were to be computed, Whether from the date of the disposition, from the date of the instrument of resignation, or from the registration of the instrument. 2dly, The evidence of the bankrupt's having been in the abbey was controverted, it being averred that he went there, not to avoid diligence, but that he had a residence there before his circumstances were suspected.

The Lords found, “That if the debtor was bankrupt within 60 days of the instrument of resignation ad remanentiam, it fell under the act 1696; and, before answer to the other points, remitted to the Ordinary to hear parties upon the evidence of his having been in the abbey.”

The ground the Lords proceeded on was, that where lands are disponed to a superior, the resignation ad remanentiam is truly the sasine, though it goes by a different name; what is called the instrument of sasine on a precept contained in a disposition to a third party, being called an instrument of resignation, where a disposition is to a superior containing procuratory of resignation ad remanentiam. And as the date of the disposition, containing such procuratory, cannot be the period from which the sixty days run, in respect of the clause in the statute, which declares, that all dispositions shall be reckoned, as to this case of bankrupt, to be of the date of the sasine lawfully taken thereupon; so as little could the registration of the instrument be the period, as even in sasines, properly so called, the time of the registration thereof is not respected.

Kilkerran, (Bankrupt) No 12. p. 57. D. Falconer reports the same case:

James Somerville disponed to Mitchell of Alderston his superior, his estate of Castle-Somerville, in security of certain, debts due to him; which was completed by resignation ad remanentiam, when the disponer was bankrupt.

Pleaded for Mr Andrew Dickson, minister of the gospel at Aberlady, and others of the Creditors, The disposition must be held as of the date of the resignation, in consequence of the clause in the statute 1696, appointing deeds, preferring one creditor to another, to be held of the date of the sasine taken thereon.

Pleaded for the representatives of the disponee, The act mentions only sasines, and not resignations ad remanentiam.

The Lords found, That the disposition to the superior behoved to be held as of the date of the resignation ad remanentiam. See No 6. p. 4.

Reporter, Murkle. Act. H. Home. Alt. Lockhart. Clerk, Kirkpatrick. Fol. Dic. v. 3. p. 67. D. Falconer, No 91. p. 101.