Scottish Court of Session Decisions

Subject_1 BANKRUPT.

Johnston
v.
Home of Manderston

1751, Jan. 29.
Case No. No. 27.

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In May 1747, George Burnet, brewer, was imprisoned on a caption by Mansfield, but soon paid the debt and was liberated. In July his brother-in-law Thomson got credit in a cash-account with the British Linen Company, Home of Manderston joining with him in a bond for the money; and of even date he and George Burnet gave Home an heritable bond of relief on a brewery and some houses to which he had right, but was not himself infeft, Moffat being the last person infeft, who disponed them to Burnet of Logie, and who transferred them to George Burnet. 6th October 1747 George Burnet was imprisoned by Johnston on a caption for a bill of L.55 sterling that was payable at Lammas 1747, and George Burnet took the benefit of the act of grace; and Thomson having also failed, Home took infeftment on the procuratory on Moffat's disposition to Burnet of Logie in April 1748, and at Martinmas thereafter paid the debt to the British Linen Company. Johnston now pursues reduction of the heritable bond of relief, first on the act 1621 as without any onerous cause given to Logie; 2dly, on the act 1696, because George Burnet became notour bankrupt, first by his imprisonment by Mansfield in May 1737, and next by his imprisonment by the pursuer 6th October thereafter, and though the disposition is more than 60 days before, yet by the statute it was to be accounted as of the date of the infeftment in April 1738. The Lords made no difficulty of assoilzieing from the reduction on the act 1621; and as to the act 1696, they thought it did not at all fall under any of the clauses of that act, because it was not for payment or security of a former debt but a novum debitum; and though the infeftment was not taken for nine months, while Home was not himself distressed, they thought they could not split the heritable bond, and make the obligement to relieve of the true date it bore, and the disposition of the date of the infeftment; yet being a novum debitum, it fell not under the sanction of that act, and as this last clause is relative to the former, it only concerns rights granted originally in security or for payment of an anterior debt, that it is not within the sanction of this clause; and of this opinion the President, as well as most of the Lords, was clear, notwithstanding the contrary judgment in the case of Colonel Charteris and Creditors of Merchiston. 2dly, They also thought, that the infeftment being on Moffat's disposition, and not on George Burnet's, it was not in the terms of that last clause, agreeably to the decision in the case of Colonel Charteris against Creditors of Blair, and of the Creditors of Prestonhall; but the President doubted of this last point. However, they assoilzied from the reasons of reduction, on my report.