Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECTION I.
Of Onerous Alienations.
Laird of Birkinbog v. John Grahame of Craigie
Date: 20 July 1671 Case No. No 3.
A disposition granted by a notour bankrupt was not reduced upon the act 1621, at the instance of the other creditors, who had done no diligence; the disposition being in satisfaction of a bargain of victual, sold and delivered to the bankrupt about a month before the disposition.
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In a competition among the creditors of umquhile Sir Robert Douglas of Tilliquhilly, a disposition granted by Sir Robert to Grahame of Craigie, was called for to be reduced upon this reason, that it was granted by Sir Robert when he was a notorious and known bankrupt, and fled, and was latent; so that by the act of Parliament 1621, he could not prefer one creditor to another, being in that condition, for that act annuals all dispositions made by bankrupts, without a just and necessary cause; and there was no necessity nor justice for the bankrupt to prefer one creditor to another.—It was answered, That unless there had been legal diligence at the pursuer's instance, or that the defender's disposition had been without a cause onerous, there is no ground for that act to hinder any debtor, though, bankrupt, to prefer one creditor to another; for if he had had the money, he might have paid any he pleased; and the cause is both just and necessary, because he might have been compelled by law to have done the same, and there was nothing to hinder the creditor; but, that as he might have first apprised, so he might have taken the first disposition from his debtor. 2do, The pursuer's debt was for a bargain of victual sold and delivered to the common debtor, but a month before the disposition in question, when he was alleged to be bankrupt.
The Lords found the last allegeance relevant, and assoilzied from the reduction, but did not decide upon the former allegeance.
