Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. III.
Alienations in favour of Conjunct and Confident Persons.
John Cunninghame and Others v. Hamilton
Date: 10 January 1682 Case No. No 30.
The Lords demurred about reducing dispositions to a confident person, where no diligence had been done against the bankrupt.
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Robert Hamilton merchant in the Bow, having in anno 1676, granted two dispositions to his sister's husband, viz. one of his house, and another of the goods of his shop, both bearing onerous causes; and continued thereafter to possess the subjects disponed, so as during the year 1677, and a part of the 1676, he was not looked on as in a broken condition: In anno 1678, when his creditors began to put to him, the brother-in-law took infeftment, and stopped poinding of the shop with the disposition; and the creditors having raised a process against him;
Alleged for the defender: That Hamilton not being a bankrupt, at least not being a notour bankrupt, and there being no diligence against him, he might prefer the defender, who, though a conjunct person, offered to prove an adequate onerous cause of both dispositions.
Answered: The Lords, in Kinfawn's case, No 29. p. 900. found a notour bankrupt, (viz. when a man had more debt than gear) though no diligence had been used against him, could not prefer. 2do, The dispositions must be repute simulate, in respect the defender lay by and concealed, of design to get the the debtor credit.
The Lords demurred on the first reason, but reduced the disposition on the reason of simulation and latency, to the effect the defender, and other creditors before the disposition, not these after pursuers, might come in pari passu. But this interlocutor is not sine sue scrupulo, seeing the proving of the onerous cause might take off the simulation; and it was stopped, and the cause settled friendly.
