Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION III.

Decisions upon the act 5th Parliament 1696, declaring Notour Bankrupts.
Subject_3 SECT. II.

What sort of Alienation falls under the sanction of the act 1696.

Durward
v.
Wilson

Date: 2 February 1700
Case No. No 191.

An inland bill, found reducible upon the act 1696, being, not for value instantly received, but in security of a prior debt.

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In a competition among the creditors of George Balfour, Normand Durward had got a bill from him for L. 50 Sterling drawn on George Wilson, who accepts; but, before payment, William Struthers and Mungo Cochran, creditors to Balfour, arrest in Wilson's hand, who suspending on double poinding, Durward craves preference, as having an accepted bill, prior to their arrestment. They repeat a reduction and declarator, that Balfour, the drawer, within 60 days after the date of the bill, broke, absconded and fled, and so must be declared bankrupt, conform to the act of Parliament 1696, within which space he could do no valid nor legal deed, in prejudice of their diligence, though posterior; and therefore the bill, as fraudulent, must be reduced, especially seeing they had horning executed against the drawer before his giving the bill. Answered, By the act of Parliament 1696, Balfour must first be declared insolvent and bankrupt which is not yet done. 2do, The said act annulling all deeds within 60 days of their breaking, can never be extended to bills of exchange, which are reputed as bags of money going de manu in manum, which are neither capable of being stopped by arrestment nor compensation; otherwise all commerce by bills would be clogged and confounded. Replied to the 1st, They now crave Balfour may be declared bankrupt. And for the 2d, if a bill of exchange be instructed to have been drawn for money actually paid down, or equivalent goods delivered, then that bill may not be quarrelled, though he break within 60 days thereafter; but where it is given to a creditor by a partial gratification to prefer him to the rest, there is no doubt it falls under the act of Parliament, and becomes reducible; as was lately found betwixt Hary Baird and Henry Mein's Creditors;* and, if it were otherwise, then all bankrupts, within 60 days of their breaking, would make all their fraudulent conveyances by bills.——The Lords found bills included within the act of Parliament as well as other assignations, unless they bore value received, or so proven, &c. The great inconvenience by the interlocutor is, that it puts parties to prove the onerous cause of their bills, which may be a retardment to the currency of trade. See Bill of Exchange.

Fol. Dic. v. 1. p. 82. Fountainball, v. 2. p. 86.

* Examine General List of Names.