Scottish Court of Session Decisions

Subject_1 BANKRUPT.

Forbes
v.
Brebner and Others

Date: 26 January 1751
Case No. No. 26.

Payments in money not reducible upon the act 1621.

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A debtor, a merchant, after he was distressed by diligence, by horning, and caption, paid three or four debts before he was in prison, but one of them, the very morning of the day on which he was incarcerated. The creditor arrested in their hands, and by their oaths the fact came out as above, and the creditor insisted on the second branch of the act 1621, that these were voluntary payments after his diligence, and on the act 1696. The sheriff assoilzied the defenders; and it was brought before me by advocation; and I affirmed the sheriff's judgment; and the pursuer having reclaimed, the Lords refused the bill without answers; and my reason was, that though the act 1621 mentions voluntary payments after diligence, yet it is after diligence duly to affect the subject, and no diligence duly affects money in the debtor's pocket; and the act 1696 is only against assignations and other deeds giving partial preference, but says nothing of payment of money; and there is no precedent in all our books of repetition of money so paid. (See Dict. No. 131. p. 1042. and No. 199. p. 1128.)