Scottish Court of Session Decisions

Subject_1 BANKRUPT.

Johnston
v.
Home of Manderston

Date: 29 January 1751
Case No. No. 27.

Novum debitum.

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In May 1747, Burnet, a brewer, was incarcerated on a caption for debt, and soon paid the debt, and was liberated. In July 1747, Thomson, a weaver, brother-in-law to Burnet, got credit in a cash-account with the British Linen Factory for L.100; and Home of Manderston, his cautioner; for whose relief Thomson and Burnet gave him an heritable bond on some houses of Burnet's, to which Burnet had only a personal disposition from one Moffat, who was the person last infeft.—October 6th, Burnet the brewer was incarcerated by Johnston on a caption for payment of a bill of L.55 sterling, dated in February, and payable at Lammas 1747, and was liberated on the act of grace; and Thomson having also failed, Home of Manderston took infeftment on Moffat's procuratory, and paid the debt to the Factory. Johnston raised reduction of the disposition and infeftment on the act 1621, as without any valuable consideration given to Burnet; but the Lords made no difficulty to repel that reason. 2dly, On the act 1696, first on Burnet's incarceration in May before the heretable bond; secondly, because of the second incarceration in October 1747, for that the disposition must be reckoned of the date of the infeftment in April 1748: But they made as little difficulty of repelling the first, because this bond, though granted after incarceration, yet was not in security of a former debt, but was a novum debitum; and for the same reason they repelled the second, for they thought that debts newly contracted, were not at all within the sanction of that law, notwithstanding the former contrary decision between the Creditors of Merchiston and Colonel Charteris.* And 2dly, As Burnet's own right was only personal, and no sasine was or could be taken on it, but on Moffat's, they thought it was not in the case of the last clause of the act 1696. The President indeed doubted of this last, but he was clear as to the former. Me referente. (See Dict. No. 200. p. 1130. and No. 265. p. 1242.)

* See Dict. voce Bankrupt, No. 261. p. 1233.