M'HARDY & Ors v WILLIAM ADAM (Court of Session)

Mr Farquharson being also debtor in a bill to the late Mr Donaldson, the latter had raised an action for the amount, which, after his death, was insisted in by the pursuers, as his trustees and executors, who used arrestments in the hands of Mr Farquharson's tenants. Decree in this action was pronounced in March 1831.

The execution of search, which had been returned by the messenger in March 1827, was reduced, in an action raised for that purpose by Mr Farquharson against Mr Bennet's representatives, of date 21 January 1831. On 9 September 1831, Mr Farquharson was sequestrated, and the defender was elected trustee.

The pursuers, as trustees and executors of Mr Donaldson, brought a process of furthcoming against the arrestees, and at the same time raised the present action, for reduction of the trust-deed which had been executed in 1827. The main reason of reduction was founded upon the act 1696, c. 5. that the deed had been granted within sixty days of the granter's bankruptcy, which was proved by the execution of search returned by the messenger on 24 March 1827.

Answered for the pursuers—That they could not be barred from founding on the bankruptcy of their debtor by any pretended decree of reduction of the execution of search, obtained in an action to which they were not called as parties; an act of bankruptcy being one in which every creditor of the bankrupt has a vested interest, which, quoad them, could not be discharged by any decree of reduction obtained against the user of the diligence, or against a creditor who has previously founded on that diligence as a title to reduce.

The defender reclaimed , but the Court unanimously adhered , upon the grounds stated in the Lord Ordinary's note.