Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Stirling, &c, Merchants in Glasgow,
v.
[Elch No. 12, Society, and No. 28, Bankrupt.]

Date: 16 November 1752

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In this case the Lords reduced, on the Act of Parliament 1696, declaring notour bankrupts, a payment made by a debtor to his creditors, by delivery of goods to them in place of money, after which the debtor within 60 days became bankrupt, in terms of the statute: This the Lords did with great unanimity, though they had found, in January last, in the case of George Forbes, merchant in Aberdeen, that payment made by a bankrupt in money does not fall under the statute. The reason of the difference seems to be, that money in the debtor's pocket cannot be affected by any form of diligence known in our law, and he may squander it or do with it what he pleases; so that by giving it in payment to one creditor he is not supposed to prejudice the rest; whereas goods in the debtor's possession may be carried off by poinding, so that the debtor by giving them away in payment to one creditor is understood to give him a partial preference,—which falls within the meaning of the statute, though not within the words, for these only mention deeds, such as dispositions, assignations, &c.

In this case the Lords also found, but only by a majority of one vote, dissent. Elchies, that a private trading company could be properly cited by citing only the principal person whose name the company bore, and that the process might go on, even though he should die, without calling his heirs or anybody else.