Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. II.
Alienations ominum bonorum.
Cranston v. Wilkie
Date: 29 June 1678 Case No. No 15.
A father granted an assignation omnium bonorum to his son. The son charged the debtor in a bond. The debtor allowed to plead compensation against the father, notwithstanding the assignation.
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James Cranston having charged Mr John Wilkie upon his bond, he suspends upon compensation, that this charger being assignee by his father, the charge was compensable by the debt due by the cedent, who, before this assignation intromitted with the annualrents of a sum due by the Lord Cranston to the suspender his brethren and sisters from whom he had assignation. The charger answered, That the suspender's assignation was not intimate before the intimation of the charger's assignation. The suspender replied, That the charger's assignation being by a father to his eldest son, and being omnium bonorum, it was fraudulent, and any debt of the father's is sufficient to be preferred thereto; neither was there any onerous or just cause to accept such a disposition, bearing expressly, to be of his father's whole means and estate; and though it bear, the undertaking of the father's debts, yet it is limited conform to an inventory, in which this debt craved to compense, is not included; and albeit it could be instructed, that the debts in the inventory were equivalent to the father's whole estate, yet it was most fraudulent, the father becoming thereby a most notorious bankrupt, fraudulently preferring some creditors to others, without prior diligence; and therefore this compensation, as it would have been sufficient against the father, so it must be sufficient against the son accepting this fraudulent disposition, though without intimation.
The Lords sustained the compensation upon the suspender's assignation, though not intimate before the charger's assignation, because the charger's assignation was fraudulent omnium bonorum, preferring one creditor to another, without anterior right or diligence.
