Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECTION I.
Of Onerous Alienations.
Scougal v. Binnie and Others
Date: 31 January 1627 Case No. No 1.
Found, that as a creditor might take payment from his debtor, although in meditatione fugæ, (in the present case on the same day that he fled,) so he, might also take assignation to debts for his payment; since no other of the creditors had done any sort of diligence against the common debtor, before the assignation.
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In an action betwixt Scougal and Binnie, and the other creditors of Patrick Craig, the which Scougal being assigned by the said Patrick to some debts owing to him, for satissying of a debt due to him by the said Patrick; and which debt of the said Patrick's, he instantly instructed, and therefore craved payment of the debt assigned to him; the rest of the creditors contended, that that assignation being made by the common debtor, who is become bankrupt, and being made that same day upon which he fled, and so done in meditatione fugæ; therefore, by the act of dyvoury, he could not prefer one creditor to another; but seeing the pursuer hath done no diligence to make him be preferred to the rest of the creditors, the assignation foresaid could not make him be preferred.—This allegeance was repelled, for the Lords found the pursuer, being a true and just creditor, might take payment of his true debt from his debtor, and so might also take an assignation for his payment, seeing no other of the creditors had done diligence against the common debtor by action or arrestment, execute before this assignation, and that it was not qualified that the pursuer was particeps fraudis with the common debtor, nor that he was rebel at any of the persons defenders instances, or at the horn.
February 1.
In an action of John Scougal's mentioned January 31. 1627, the Lords preferred the assignee made by the bankrupt, where the assignee had intimate his assignation, and intented his pursuit as timeously as the other creditors of the bankrupt, who had arrested that very same day of the intimation of the assignee's assignation, and had intented their actions also timeously, the assignation being made before the arrestment two days, and the common debtor being debtor to the assignee, before the debt owing to the other creditors, and his term of payment being before theirs, the common debtor not being rebel, nor charged by letters of horning, the time of the making of the assignation, and the assignee not being particeps fraudis, quia qui suum recipit non videtur alteri fraudem facere, & I. C. Qui habet rem ex causa lucrativa tenetur creditoribus actione Pauliana, licet ignoraverit consilium fraudulentum: qui vero rem accipit ex causa onerosa non alitur tenetur creditoribus, quam si fuerit particeps fraudis, l. pen. C. de Revoc. quæ in fraud.
Act. Belshes.Clerk, Gibson.
Fol. Dic. v. 1. p. 66. Durie, p. 265. & 267.
