Reviving an extinguished obligation in prejudice of a creditor. - Discharging a bond, and taking a new one, payable to a third person, to disappoint a creditor. - Sale retenta possessione.
Thomas Kinneil v. Alexander Menzies
Date: 18 November 1790 Case No. No 63.
Sale retenta possessione ineffectual.
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A tenant of Kinneil's having become bankrupt, a sequestration of his effects was awarded by the Sheriff of the county.
Upon this, Menzies claimed the property of several articles of household furniture found in the tenant's possession. He proved, that a sale had taken place, and that his not removing them was owing to the tenant, who was willing that they should remain where they were, as long as it might be convenient.
The Sheriff having sustained the claim, a bill of advocation was preferred, which was followed with answers.
The Lord Ordinary affirmed the judgment of the Sheriff, “in respect that every presumption of fraud or collusion between Menzies and the bankrupt had been removed by the evidence.”
A reclaiming petition was preferred by Kinneil, which was followed with answers:
The Court altered the interlocutor of the Lord Ordinary, on this ground, that the agreement of sale, though bona fide made, had not been fulfilled by delivery, the goods sold still remaining in the possession of the seller. Erskine, book 3. tit. 3. § 6. and 7.
The Lords found, That the articles of household-furniture claimed by Menzies fell under the sequestration.
Ordinary, Lord Monboddo.Act. Tait.Alt. M'Cormick.Clerk, Colquboun.
Fol. Dic. v. 3. p. 246. Fac. Coll. No 149. p. 298.
