Payments in money by a debtor to some of his creditors, found not reducible upon the act 1621.
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George Forbes, merchant in Aberdeen, used diligence by horning against George Elmsly, merchant there, his debtor, who, after being denounced, made payment to William Brebner, merchant there, and others, his creditors, of certain sums he, owed them: And thereupon George Forbes incarcerate him; and having arrested in the hands of these creditors, as debtors to Elmsly; and they having deponed they were not his debtors, but, on the contrary, had received payment of what Elmsly owed them; he insisted for furthcoming of the sums paid, alleging the payment was reducible, as being partially made, in defraud of him a creditor who had used diligence.
The Lord Ordinary, 15th instant, assoilzied the defenders.
Pleaded in a reclaiming bill; by the act 1621, if a dyvour shall make any voluntary payment, in defraud of the more timely diligence of another creditor, the creditor having used the first lawful diligence, shall have good action to recover what was voluntarily paid in defraud of his diligence: The Lords have sustained repetition of goods delivered by a bankrupt, in defraud of his creditor's diligence, 27th January 1715, Forbes of Ballogie against the Creditors of Forbes, infra h. t.; 19th July 1728, Taylor against Smith, infra h. t. A bankrupt can sell his estate; and if he can pay away the money among his favourite creditors, it will render of little use the statutes for preventing partial preferences.
The Lords refused the bill.
Pet. H. Home.
Fol. Dic. v. 3. p. 52. D. Falconer, v. 2. No 186. p. 225.
