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Lord President Emslie observed (page 169):of creation of the floating charge, a public fact because of its registration, by di Iigences which were not truly comparable with rights of fixed security and were lesser rights of a purely personal character such as arrestment.”in respect that the arrestment pre-dated the creation of the floating charge.The court held that although the arrestment was only a step in diligence which had not been completed by furthcoming, it rendered the subject arrested litigious with the result that the debtor could not defeat it by any subsequent voluntary deed.was concerned with interpretation of sections 15(2)(a) and 20(1)(b) of the 1972 Act whereas the present case was concerned with sections 55(3)(a) and 60(1)(b) of the 1986 Act.

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Section 327 echoed the terms of earlier bankruptcy legislation, and in [8] The Companies (Floating Charges and Receivership) (Scotland) Act 1972 introduced the concept of receivership to Scots law by entitling a floating charge holder to appoint a receiver to realise the property subject to the charge.

Section 1(2)(a) of the 1961 Act was re-enacted in the same terms as section 1(2)(a) of the 1972 Act.

Secondly, the Bankruptcy and Diligence etc (Scotland) Act 2007, section 154 removed, with effect from 22 April 2009, the “second” common law effect of inhibition, namely a preference in any insolvency proceedings over debts contracted by the debtor after the date of the inhibition, leaving intact the “first” common law effect, namely the prohibition of the inhibited debtor from alienating (including the granting of a security over) any part of its heritable property.

(I mention in passing that the 2007 Act also abolished the diligence of adjudication for debt, but the relevant provisions are not yet in force.)1977 SC 155 concerned a competition between a floating charge holder and a creditor who had arrested funds but had not raised an action of furthcoming before the date of appointment of a receiver by the charge holder.

[2] The pursuer sues as an individual and as executor of his late wife, Susan Mac Millan, who died on 22 April 2015.

Last modified 10-Sep-2019 17:50