If you found BAILII useful today, could you please make a contribution?

Your donation will help us maintain and extend our databases of legal information. No contribution is too small. If every visitor this month donates, it will have a significant impact on BAILII's ability to continue providing free access to the law.

Thank you very much for your support!


BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomas Kinneil v Alexander Menzies. [1790] Mor 4973 (18 November 1790)
URL: http://www.bailii.org/scot/cases/ScotCS/1790/Mor1204973-063.html
Cite as: [1790] Mor 4973

[New search] [View without highlighting] [Printable PDF version] [Help]


[1790] Mor 4973      

Subject_1 FRAUD.
Subject_2 SECT. XII.

Reviving an extinguished obligation in prejudice of a creditor. - Discharging a bond, and taking a new one, payable to a third person, to disappoint a creditor. - Sale retenta possessione.

Thomas Kinneil
v.
Alexander Menzies

Date: 18 November 1790
Case No. No 63.

Sale retenta possessione ineffectual.


Click here to view a pdf copy of this documet : PDF Copy

A tenant of Kinneil's having become bankrupt, a sequestration of his effects was awarded by the Sheriff of the county.

Upon this, Menzies claimed the property of several articles of household furniture found in the tenant's possession. He proved, that a sale had taken place, and that his not removing them was owing to the tenant, who was willing that they should remain where they were, as long as it might be convenient.

The Sheriff having sustained the claim, a bill of advocation was preferred, which was followed with answers.

The Lord Ordinary affirmed the judgment of the Sheriff, “in respect that every presumption of fraud or collusion between Menzies and the bankrupt had been removed by the evidence.”

A reclaiming petition was preferred by Kinneil, which was followed with answers:

The Court altered the interlocutor of the Lord Ordinary, on this ground, that the agreement of sale, though bona fide made, had not been fulfilled by delivery, the goods sold still remaining in the possession of the seller. Erskine, book 3. tit. 3. § 6. and 7.

The Lords found, That the articles of household-furniture claimed by Menzies fell under the sequestration.

Ordinary, Lord Monboddo. Act. Tait. Alt. M'Cormick. Clerk, Colquboun. Fol. Dic. v. 3. p. 246. Fac. Coll. No 149. p. 298.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/1790/Mor1204973-063.html