Scottish Court of Session Decisions

Subject_1 BANKRUPT.

Creditors of Johnston
v.
Nisbet, &c

1750, July 10.
Case No. No. 25.

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Johnston granted a security to Innes 17th July 1746. He was 16th August committed to prison by Dirleton, but liberate 20th, and on 21st granted a further security to Dirleton, and continued to carry on his business of a merchant as formerly, at least till January 1747, and is now found to have been then quite insolvent. The other creditors quarrelled these two securities. I quoted the case 9th February 1743, Creditors of Agnes Hamilton against Henry, (supra) on which we got memorials. Though I was against the judgment in that former case, yet I thought it hard that a security obtained by force of diligence, when no other creditors used diligence, should be voided merely by that creditor's own diligence; and therefore thought, where the imprisonment was momentary, and the debtor returned to the forum, that was not notour bankruptcy in the meaning of the act. On the vote, it carried to repel the reasons of reduction; renitentibus Justice-Clerk and Kilkerran.—9th November, Altered and reduced, in which I concurred. The petition is accurately written. 22d November, Adhered.