Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BANKRUPT.
Subject_3 A precept of sasine granted by a bankrupt in implement of marriage-articles, long prior to the bankruptcy, falls not under the sanction of the statute 1696.

James Robertson, Barclay, and Others,
v.
Rachel Spottiswood

Date: 19 November 1783

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[Faculty Collection, IX. 193; Dict. 1177.]

Justice-Clerk. If a man lends his money on heritable security, and, either from confidence or carelessness, does not take infeftment, and, in the event, is a loser, sibi imputet; but I view the condition of a wife in a very different light. When a wife accepts of marriage-articles, and an obligation to infeft her in particular lands, she gives up her legal claims: she is under the protection of her husband, and it was his duty and his obligation to grant her infeftment: it was a fraud in him to omit it, and the creditors cannot take advantage of his fraud.

Braxfield. Had the infeftment been granted debito tempore, no injustice would have been done to other creditors; but, as Mr Robertson did not grant the precept till he was bankrupt, in this he is doing no injustice: but then the question is, Whether this be not doing injustice to other creditors, in the supposition of its giving a preference to the wife? The wife ought to have adjudged in implement, and then have applied to the superior for infeftment, and then there would have been a race amongst the creditors; but that was not done.

Monboddo. An inhibition would not have affected this infeftment. The Act of Parliament 1696 cannot have a stronger effect than an inhibition.

On the 19th November 1783, “The Lords repelled the objection, and preferred Rachel Spottiswood (Mrs Robertson.)”

Act. A. Wight. Alt. C. Hay. Reporter, Ankerville.

Diss. Braxfield, (in the chair,) Elliock, Stonefield, Hailes, Ankerville, Henderland.