Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECTION I.
Of Onerous Alienations.
Frazer v. Mackie
Date: 1 February 1681 Case No. No 5.
Found, that a party holding an assignation beating to be for causes onerous, was bound to explain the cause particularly, that it might be known whether it was adequate.
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William Fyfe having given an assignation to a sum of 5000 merks, due to him by Inchbrakie, first to George Mackie, and thereafter to Frazer of Balbedie; it was alleged for Frazer, that albeit Mackie's assignation was prior, yet it was without a cause onerous by a bankrupt, in defraud of him and others the bankrupt's creditors, for whose use he had obtained assignation; which being found relevant, Mackie deponed that the assignation was for causes onerous; but refused to depone what the cause was, or whether it was equivalent; and alleged that his assignation does bear causes onerous as well as Frazer's; and it being referred to his oath, that it was without a cause onerous; and not in these terms, ‘that it was without an equivalent cause onerous,’ he was obliged to depone no further than to deny the allegeance referred to his oath.—It was answered, That the reason of preference for Frazer being, that the cedent was bankrupt, and had no other means but this sum assigned to him, whereby he became wholly insolvent, and therefore could not without a cause onerous, and legal diligence, assign the bond to Mackie, therefore he ought to depone what was the cause of the disposition particularly, that the Lords may determine, whether it was equivalent, or whether the assignation was fraudulent.—It was replied, That this was no way competent to Frazer, till he had first instructed his posterior assignation to be for debts prior to Mackie's assignation, otherwise if Mackie's assignation were in whole or in part gratuitous, it is not fraudulent, but preferable to any posterior assignation.
The Lords found, That if Frazer instructed the cause of his assignation to be the common author's debts, anterior to Mackie's assignation, that Mackie should depone particularly what was the cause of his assignation, that the Lords might determine whether the cause was adequate.
