Legal Subject: Ranking of Creditors

Case Date Legal Subject Abstract
Alexander Melvil v. James Barclay 23 Jan 1779 Currente Termino, Ranking of Creditors, Arrestment, Void Poinding This case concerns a competition between Alexander Melvil and the other creditors of James Davie, brewer in Cupar, whose affairs went into disorder in the summer of 1775. Davie's moveable effects were sold by public roup (auction) that September, under the authority of the Sheriff of Fife. Alexander Melvil had previously executed a void poinding on these effects and entered a claim to them on this basis, which the Sheriff rejected. After the poinding was carried out by Robert Stark, the sequestrator, Melvil contested the goods once again. On August 5, 1777, Lord Braxfield found Melvil's claims to the goods preferable to Davie's other creditors and servant's wages. The other creditors of Davie then petitioned the Court to review Braxfield's interlocutors. In addition to asking the court to deny Melvil's claim, they also argued that the wages of James Barclay, late servant to James Davie, formed a disadvantage case, and should be given preference. The Court ruled that wages were to be considered privileged debts, and preferable to Melvil's claim.
Cassillis v. Stephenson 1776 Ranking of Creditors The parties in this case were creditors of the late William Donald, a merchant in Ayr. Through an agent, Andrew Stephenson, respondent, brought a process to rank the creditors, and representatives of the creditors met to select a common agent. Petitioner David, Earl of Cassilis, claimed that at the meeting a majority of creditors voted for Alexander Abercrombie to be the common agent. However, respondent Stephenson and others preferred George Tod. Following the meeting, Lord Gardenstone, Ordinary, nominated and authorized George Tod as common agent. Cassilis et al. sought review from the Lords of Session, arguing that Abercrombie was selected as common agent by a majority of creditors and by a majority of the value of the debts represented. The petitioners also argued that, as “preferable” creditors, they had priority over the respondents, who were “postponed” creditors. Stephenson et al. disputed specific votes at the creditor meeting, arguing that certain agents for the petitioners were not authorized to vote for Alexander Abercrombie. Some creditors, they argued, did not meet the threshold amount of debt to gain a vote. For all the other creditors who met the threshold amount of debt, the respondents rejected any distinction between preferable and postponed creditors for the ranking of creditors.
Clifford and Sons v. Mosman 1772 Poinding, Arrestment, Ranking of Creditors John Syme and Son, merchants in Leith, owed money to Clifford and Son, pursuer, merchants in Amsterdam. Due to the nature of the transaction, the money was required to pass through the hands of William Hogg and Son, merchants in Edinburgh. (In the transaction, another person, Archibald Maclean, advanced money to William Hogg and Son, which they in turn gave to John Syme and Son. McLean was then reimbursed by Clifford and Son). William Hogg and Son subsequently encounter financial problems, which raised the possibility that its creditors would to collect the money. Clifford and Son sought to avoid this possibility. Hugh Mosman, a writer in Edinburgh and creditor of William Hogg and Son, claimed an interest in the payment from John Syme and Son to William Hogg and Son. Clifford and Son disputed Mosman's claim by arguing that they were entitled to the payment because they provided the funds in the first place.
Creditors of Moncreiffe v. Moncreiffe 1777 Multiple-Poinding, Ranking of Creditors Sir Thomas Moncreiffe provided £1,000 to the younger children of his son, Thomas. A dispute between Thomas' two children, William and Patrick, was resolved in the latter's favor. William then became the target of several of Patrick's creditors, who brought action for payment before Lord Elliock. Sir William Moncreiffe responded with a process of multiple-poinding (claim adjudication), which Lord Kennet transferred to the process before Lord Elliock. Moncreiffe then petitioned the Court to affirm that the ranking must be fully adjusted before he be required to make payment. Cochrane, Murdoch, and Company, creditors in the ranking, answered that the ranking was indeed concluded. They also petitioned to be ranked on and to recover expenses from the draught of John Thain, another creditor of Moncreiffe, now deceased. John Thain's widow and children then submitted answers to this petition, asking the Court to refuse Cochrane, Murdoch, & Co.'s request. See also John Thain, Advocate in Aberdeen v. Sir William Moncrief of Moncrief, a related case that came before Lord Hailes.
Douglas, Heron, and Company v. Fisher 1785 Ranking of Creditors This case concerned the ranking and sale of the estate of Alexander Campbell of Raschoilley. In that ranking and sale, creditors Douglas, Heron, and Company objected to claims made by Jean Fisher and Barbara Campbell, Alexander’s mother and sister, respectively. In particular, the objectors argued that Jean and Barbara were not entitled to payment on bonds left to them by Alexander’s father, James Campbell, because the women had already obtained the benefits of residing with Alexander for a period of time. The petitioners also made a number of smaller objections.
Dunlops, and Others v. Spiers, and Others 1778 Ranking of Creditors James Dunlop Jr. incurred substantial debts, in which his father, James Dunlop of Garnkirk, became jointly bound. In 1763, James Jr. became insolvent and transferred his effects to Alexander Spiers, and others, as trustees for his creditors. To protect James Sr., several friends, including Thomas Dunlop, purchased the debts for which James Sr. was jointly liable. To secure these debts, James Sr. granted the friends a bond over his estate; he subsequently conveyed the estate to them in trust, subject to certain provisions for his children. As a result, Thomas Dunlop et al. were creditors with respect to the joint debts, as well as trustees of James Sr.’s estate. In 1772, Spiers et al. advertised a dividend from James Jr.’s estate and invited creditors to submit their claims. Thomas Dunlop et al. submitted a claim but were refused; they then sued. Spiers et al. argued that the refusal was justified because James Sr.’s marriage contract promised the entire estate of Garnkirk to James Jr. Therefore, according to Spiers et al, Thomas Dunlop et al. should collect payment from the estate that they already controlled. Further, Spiers et al. argued that James Sr.’s trust disposition required the same result. However, Thomas Dunlop et al. argued that as creditors, they were entitled to attack James Dunlop Jr. for payment. On June 26, 1776 the Court determined the pursuers as creditors of Dunlop, junior were entitled to be ranked along with his other creditors. On July 31, 1778 they limited the amount the pursuers could draw upon Dunlop, junior's estate, however they reversed this ruling on November 28. The defenders then petitioned the Court to alter their last interlocutor. The issue of the marriage contract was eventually resolved in Alexander Spiers and Others v. Thomas Dunlop and Others.
In re Jean Alexander 1779 Debt, Ranking of Creditors Jean Alexander, petitioner, held a bond on behalf of a French niece of her father, William Alexander, deceased Lord Provost of Edinburgh. The obligants on the bond were her brothers Robert and William. However, the former was deceased and the latter was bankrupt, and she had failed to produce her interest in time for a process of ranking upon William's estate. She petitioned the Court to have it inserted after the fact.
Ker v. Creditors of Sutherland 1772 Debt, Ranking of Creditors, Estate Alexander Sutherland of Kinminity granted a bond to the late Alexander Gordon of Garty. Gordon used this bond as collateral in dealings with other persons. Pursuer Elizabeth Ker's late husband, James Ker, was one of Gordon's creditors. Ker sought to collect on the bond, and he obtained for himself, and as assignee on behalf of certain other persons, a decree of adjudication against Alexander Gordon's son. Elizabeth Ker sought to collect on the bond on her late husband's behalf. Creditors of Sutherland, including George Dunbar, also sought to collect on the bond. At issue was whether Ker's claim could be treated pari passu (on equal footing) with the claims of Sutherland's creditors, such George Dunbar. Elizabeth Ker maintained that her husband's adjudication was timely, within a year and a day of another creditor's adjudication, so she should be ranked in her due order of preference. The creditors of Sutherland maintained that they had priority over Ker.
Murdoch and Miller v. Home and Scott 1773 Debt, Competition, Ranking of Creditors Andrew Wilson, writer in Bo'ness, died with debts owed to creditors. His eldest son James Wilson sought to pay off the debts by a judicial sale of a tenement in Bo'ness, owned by the father. The pursuers and defenders in this case were competing creditors. Pursuers Murdoch and Millar (alternatively spelled "Miller") claim rightful ownership of the tenement based on a heritable bond dating back to Andrew Wilson's purchase of the tenement. In 1725 Wilson granted a heritable bond to two merchants in Edinburgh, who then assigned their interests to Peter Murdoch and William Millar, the fathers of the pursuers. The defenders argued the adjudication to Messrs. Murdoch and Miller was null and void. The pursuers asserted an interest in the tenement based on a separate creditor proceeding ("decree cognitionis causa") brought against Andrew Wilson through his heir James. Thus, the pursuers claimed they should be ranked side by side with Defenders.
Ranking of Orr of Watterston's Creditors 1777 Ranking of Creditors, Conjunct and Confident Persons, Onerous Creditor This case concerns a competition over the ranking of the creditors of Robert Orr of Waterstone, whose affairs went into disorder in 1767. One year after a horning was denounced against him, he gave a principal settlement in favor of his wife and children, Isobel Rowan and Janet and Elizabeth Orrs. When Rowan and her daughters entered this interest into the ranking, objections were made on the grounds that a settlement made by a bankrupt person in favor of conjunct and confident persons, with no onerous cause, could not compete with the rights of creditors. Lord Kennet, Ordinary, sustained these objections in July of 1776. The following March, Rowan and the Orr children petitioned the Court to review this interlocutor. They argued that Orr's settlement in favor of his family was indeed onerous on their account, as a replacement for the fact that Orr and his wife had no marriage contract. Furthermore, they argued that the settlement was also onerous due to the fact that it had been granted in return for the £400 sterling in dowery money that Rowan's brother had given Orr. As a final point, they added that although the period of time that had elapsed since Lord Kennet's interlocutor had rendered his decision final, they asked for special dispensation: their former agent, William Wilson of Soonhope, had died around the time objections were being made to their interest, and their next prospective agent, James Sommers, declined on account of a conflict of interest. "Indeed it is only within these two days that the petitioners, by the assistance of friends, have been able to afford the expense of printing this petition to your Lordships."
Ranking of William Simpson's Creditors 1779 Negotiation, Bill (Financial Instrument), Bigamy, Ranking of Creditors William Simpson, mariner in London, died in 1771 shortly after receiving a legacy of £140 sterling from his mother, Marion Prentice. The money had been held in trust, payable upon the death of Simpson's father, Glasgow merchant Matthew Simpson. Shortly before his death, William Simpson executed a will and testament bequeathing his wife, Margaret, his entire estate. Soon afterward, William MacCormick and Company, Glasgow merchants, raised a process in the Glasgow Commissary Court against James Baird, William Simpson's power of attorney. The Company sought the sum of two bills that Simpson had drawn upon his father, Matthew, payable to the pursuers. Baird brought the cause by suspension to Lord Covington, who called a multiple-poinding. Margaret Simpson then took up the cause, arguing, as had Baird, that the bills in question had not been negotiated. Lord Covington repelled her objection and found MacCormick and Company preferable, after which Margaret Simpson petitioned the Court. She argued that it had not been established that Matthew Simpson had no articles belonging to William Simpson in his possession, and that MacCormick had conveniently waited for the two men in question to die before making diligence upon their bills. The respondents argued that there was no proof that Matthew Simpson had anything belonging to his son. They claimed that the bills had only been drawn upon the father as security because he was a clerk for MacCormick and Company. Furthermore, the respondents raised doubts over whether Margaret Simpson was indeed her late husband's rightful heir; they claimed that William Simpson had another wife, named Jean Park, who lived in Glasgow.
Woods v. Carstairs 1777 Bargain, Loan, Ranking of Creditors This case concerns a promised wheat shipment from Robert Fleming, tenant in Falside, to James and William Woods, merchants in Elie. In January 1777, Fleming wrote the Woods brothers about his circumstances. He offered to send them "all the wheat that I have" in exchange for an advance of money. The Woods brothers sent Fleming about £9 in cash and approximately £30 in bills. Fleming then sent the Woods sixteen bolls of wheat, promising to deliver the remainder after seed-time. However, before this could happen, Fleming's affairs went into disorder, and he applied for a sequestration of his effects. The Woods then applied to James Carstairs, Fleming's factor, for the remainder of the wheat. Carstairs replied that the money Fleming had received from the two men was not a bargain, but a loan, and informed them that they would have to wait for the ranking of Fleming's creditors. The Woods then petitioned the Court to order Carstairs to deliver the wheat to them. As opposed to Carstair's claim that the transaction in question was a loan, the pursuers argued that it was a bargain.