Scottish Court of Session Decisions

Subject_1 FRAUD.

Andrew Forbes
v.
MessrsMains and Company

Date: 25 February 1752
Case No. No. 27.

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In 1749 Mrs Rolland commissioned two parcels of wines from Messrs Mains and Company, merchants in Lisbon, who furnished them out of regard to her deceased husband with whom they were in use to deal, and who dealt honestly by them, and she also honestly paid these two parcels, though she had been broke in 1748, and obtained a cessio bonorum against her creditors, of which the Mains were ignorant. In 1750 she commissioned a third parcel from them, which they also sent, but upon its arrival at Leith, Andrew Forbes, one of her creditors, arrested it for a debt prior to the cessio, and pursued forthcoming in the Admiralty-Court. Compearance was made for Messrs Mains, and a reduction of the sale repeated on the head of fraud, because Mrs Rolland was bankrupt before she commissioned the goods, of which the Mains were ignorant. The Judge found that the fraud impeded the transmission of the property, and therefore preferred Mains. The arrester pursued reduction of the decreet; but on report, we repelled the reasons of reduction and assoilzied. (See Dict. No. 41. p. 4937.)