James Robertson, v. James Ogilvie, Trustee for the Creditors of James Burnside
Date: 21 November 1798 Case No. No. 6.
An indorsation to a bill within sixty days of bankruptcy, which had been reduced so far as it related to prior debts, sustained as a security for money advanced between the date of the indorsation and actual bankruptcy.
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The estate of James Burnside was sequestrated on the 27th April 1793; and James Ogilvie was appointed trustee for his creditors.
Burnside was at this time in an account-current with James Robertson,
Dr.
1792. Dec. 10.
To Robertson's acceptance without value, ……………
£400
0
0
1793. March 14.
To cash, ……………
260
0
0
£660
0
0
Cr.
1793. March 9.
By Arch. Muir's bill indorsed to Robertson, ………
£400
15
3
April 15.
By cash, ……………
197
12
0
Balance due to Robertson,
61
12
9
£660
0
0
Ogilvie brought a reduction of the indorsation to Muir's bill on the act 1696, C. 5. and obtained decree in absence.
Robertson raised a reduction-reductive.
The Lord Ordinary assoilzied the defender.
Robertson, in a reclaiming petition, contended, 1 mo, That the act 1696 did not apply to the indorsation in question; 2do, That at least he ought to be allowed retention to the extent of the £260. afterward advanced by him. The Lords (11th March 1797) refused the petition on the first point*; but remitted to the Lord Ordinary to hear parties on the second.
His Lordship “sustained the compensation pleaded, to the amount of £260.”
Ogilvie now reclaimed, contending, inter alia, That as it was established that Robertson had got possession of the bill in consequence of a constructive fraud, he could not be allowed to plead compensation on it.
Answered: The sanction of the act 1696 applies only to securities for prior debts, and not where money is either immediately or afterward advanced by the creditors; 1st March 1791, Stein's Creditors against Sir William Forbes, J. Hunter and Company, No. 204. p. 1142.
The Court, on advising the petition with answers, being clear that the judgment was right, adhered.
Lord Ordinary, Stonefield.Act. Greenshields.Alt. Fletcher.Clerk, Colquhoun.
Fac. Coll. No. 91. p. 210.
* See August 10th 1780, Campbell against Macgibbon, No. 202. p. 1139.
