Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. IX.
Of Fraudulent Preferences and Alienations.
Binning v. Farquhar
Date: 15 November 1666 Case No. No 68.
A father disponed to his son. The son disponed again to his brother-in-law. In so far as the father was bound in the son's contract of marriage, his disposition was good to the son; but the son's disposition, in prejudice of creditors, if not proven to be onerous, would be deemed fraudulent.
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A disposition being made by a father in favours of a son; and thereafter the same lands being disponed by the son in favours of his brother-in-law: The said rights were questioned by a creditor, as being fraudulent; being disponed by the son's contract of marriage; which, though onerous as to provisions in favours of the wife, is not so as to the son, whom the father could not advance, or provide in prejudice of the creditors: But it was alleged, that the disposition made by the son, was for an onerous cause; and, by the act of Parliament, though a right should be found fraudulent, yet a third party acquiring bona fide, by the act of Parliament is secured; and his right cannot be questioned, unless he be particeps fraudis, or acquire the same without an onerous cause, which, by the act of Parliament, is only probable scripto vel jur amento.
Yet the Lords inclined to reduce the right granted by the son, unless it were offered to be proven, that it was for an onerous cause; in respect of several presumptions alledged and informed by the pursuer: And, before answer, as to the relevancy, ordained both parties to condescend upon their presumptions hinc inde, of fraud, or the cause onerous for the granting of the said right, and to prove the condescendence. I have ever thought, that the practice of the Lords to ordain parties to prove before answer, as it is late, is accompanied with many inconveniencies; seeing by such acts, which are not of litiscontestation, processes are still kept loose; and after that irregular way of probation, the debate of relevancy is again resumed, to the great vexation both of parties and Lords; and after the Lords interlocutor of relevancy, there may be again litiscontestation: So that upon the matter there are two litiscontestations in one cause.
It being again debated, What the certification should be in such acts, viz. whether the allegeance should be holden as not proponed; or that the Lords should advise: Which in effect is no certification.
The Lords were not clear to determine; which is a great informality, and a pressing reason against that anomolous way.
