Scottish Court of Session Decisions

Subject_1 BANKRUPT.

Crawfurd
v.
Stirling, &c

1752, Nov. 16.
Case No. No. 28.

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A Chapman at Hamilton having stopped payment when he was debtor to Stirling and Company, Stirling went to Hamilton and bought shop goods to the amount of the debt. An account of the goods bought was made out and discharged by the chapman, and Stirling discharged his bills to the Company; and some days after one of the partners of another Company to whom he owed money also went and bought goods to the value, and also to the value of a bill he owed another person, and who entrusted him with the bill but without any indorsation, and he also got a discharge of the goods bought, and discharged both the Company's debt and that other person's; and all the difference betwixt the two sales was, that Stirling bought in name of the Company, but the partner in the other Company bought in his own name, and applied the price in payment of a debt due the Company, and to another. Robert Crawford, another creditor of this chapman, raised horning and caption and rendered him notour bankrupt in terms of the act 1696, and arrested in the hands of these Companies and pursued forthcoming; which coming before me I allowed a proof of the libel, and of the qualifications of the act 1696, without a formal process of reduction; and the proof being this day advised, the defenders insisted that sales of moveables, or giving them in payment of debts, fell not under the 1696, which only mentions dispositions and assignations, and other deeds, which must mean deeds in writing; 2do, That the sale was not reducible being for an adequate price, and the debtor might lawfully apply his ready money for payment of debts, notwithstanding the act 1696, as we found 26th January 1751, Forbes against Brebner, (supra,) and much more where the purchase was by one person, and the money applied to pay a debt due to another, and quoted from the Dictionary a case in January 1733 of Bailie Arbuthnot.* Lastly, They objected that Stirling was dead and his heirs not called, therefore the process could not proeeed against that Company till the process was transferred against his heirs. The Court had no difficulty but as to the last, the transferring the process against Stirling's heirs; and I observed, that if he was not in the field the Company was not in the field, that it was therefore necessary to call him in the process, as

* Dict. No. 198. p. 1228.

was done; and if that was necessary, then he being dead, the process behoved to stop till his heirs were called. The President agreed that it was necessary at first to call him, but the Company being in the field they were still in the field, notwithstanding his death; and upon the question the objection was repelled; renitent. Kilkerran, Kames, Woodhall, et Me; and we unanimously repelled the other defences, and decerned in the forthcoming.