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Scottish Court of Session Decisions >>
Competition Creditors of Auchinbreck. [1769] Mor 14131 (12 July 1769)
URL: http://www.bailii.org/scot/cases/ScotCS/1769/Mor3214131-034.html Cite as:
[1769] Mor 14131
Different securities on the Estate or Subjects of an Individual Debtor, how they are to be Ranked. - Ranking for Penalties or Expenses.
Competition Creditors of Auchinbreck
Date: 12 July 1769 Case No. No 34.
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In the same ranking, a different rule was laid down with regard to double securities upon the same estate or subject. Campbell of Balerno and others, Creditors by heritable bonds upon the estate of Auchinbreck, having also adjudged the said estate for their debts, including arrears of interest, &c. received payments in the course of the ranking, to account of the interest on their heritable bonds. They afterwards insisted to rank 1mo, On their heritable bonds; 2do, Upon their adjudications for the whole sums therein contained till their accumulations should be fully paid. They pleaded, That when an adjudication is habilely led against any subject, that subject is only redeemable from the adjudger on payment of the whole sum for which it was led, with the interest thereof from and after the date of the adjudication. Answered, That it would be highly unjust and oppressive to allow the same subject to be attached over and over again whether in the way of voluntary or legal security for one and the same debt, to the effect of enabling the creditor to rank upon it for his whole debt repeatedly, in prejudice of other creditors. The Lords found That the preferable creditors were entitled to rank upon their adjudications only for the balance, deducting what they had drawn upon their heritable bonds. See No 39. p. 14139.
