Blackwood v. The other Creditors of Sir George Hamilton
Date: 18 January 1749 Case No. No 25.
How far fraudulent to take a second right when in the knowledge of a former.
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In the reduction of the decree of ranking of the Creditors of Sir George Hamilton, upon the estate of Dudhope, the ground whereof vide 4th instant, voce Process, this point inter alia occurred to be reasoned among the Lords; in what case the knowledge of a prior right did infer fraud in the acquirer of a second right? Some of the Lords thought that it only held in the case of a second purchaser of an irredeemable right; for this reason, that double redeemable rights are compatible, as the debt due to the acquirer of the prior right may be aliunde paid, and that in the case of creditors, vigilantibus jura subveniunt.
Others doubted if that distinction would universally hold. Suppose, for example, the debt, for security whereof the prior right was granted, manifestly to exceed the value of the subject, and the debtor, granter, in no condition otherways to pay: And the maxim vigilantibus, &c. only applies to the case of legal diligence. But all agreed in this, that where the subject was at the time equal to both debts, and which happened to be the present case, as there was no fraud at the time in the acquirer of the second right, so it could not ex post facto become a fraudulent act by the eventual insufficiency of the subject, through its being drawn away by other creditors obtaining themselves infeft before the obtainer of the first right. See No 34. p. 904.
