Scottish Court of Session Decisions

Subject_1 FORFEITURE.

Dempster
v.
Lady Kinloch

Date: 15 February 1750
Case No. No. 12.

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Geoege Dempster in November 1742 got an heritable bond from the deceased Sir James Kinloch, father to the forfeiting person, and James Kinloch afterwards Sir James his son, now forfeited, for L.20,000, and was immediately infeft. This money was intended for payment of the debts, but as they had immediate use only for L.8735 of the money, Dempster gave them an obligation for the remainder of the money and interest thereof on demand, and in December 1743 retired his obligation with a short discharge by both father and son acknowledging payment, which was said to be holograph of the father except the date of the son's subscription, which being signed at a different place was said to be holograph. The son's Lady was about the same time infeft in her jointure, but Dempster's sasine was first registrated. Lord Advocate objected to the debt that it was suspicious, the whole money not being advanced at the date, and looked like a fund of money to the Rebels to carry on the Rebellion, and therefore insisted that it fell under the clause in the vesting act as granted after 24th June 1742, and the Lady objected to his preference on the priority of his registration that he could only be preferred for the sum then advanced but not for what was advanced after her sasine was registrated. As to the first, had the bond been only by the forfeiting person there might have been difficulty, but as Sir James the father who was not forfeited was proprietor of the estate, his bond could not be the worse for being also granted by his son, and therefore we made little difficulty of sustaining the claim,—but as to the preference the Court was greatly divided. The President was clear that he could only be preferred for the sum then advanced, and that it was no debt till the money was advanced. Others again (inter quos ego) thought that Dempster was a real creditor on the estate from the date of his infeftment for the whole, and the Kinlochs creditors to him in the personal obligement, and there were numberless transactions of that sort every day both by real securities and sales, that is, the creditor or purchaser infeft and part of the money paid, and for the remainder either bills granted or an obligation to pay to a list of creditors, or to pay to the debtor or seller upon demand, or on drawing precepts. The President admitted, if bills were granted it would be good, or in the case of sales obligations might be taken,—and we insisted, that if lands might be so sold then so might an annualrent or wadset proper or improper, and we saw no difference betwixt giving bills and other personal obligements payable on demand. On the vote it carried by the narrowest majority to prefer Dempster for the whole. Pro were Minto, Strichen, Dun, Shewalton, et ego. Con. were Haining, Justice-Clerk, Murkle, and Drummore, who was reporter, and the President, but he had no vote. —13th June The Lords altered, and found my Lady preferable as to all except the L.8000 advanced. Renit. Dun, et me.