Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 11 January 1683
Robert Ralston v. Marion Weir
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Robert Ralston,—as having right from James Weir in Hamilton, by an heritable bond, to some tenements there, for security of 1200 merks he had lent him, and as adjudger of them,—pursues a reduction, against Marion Weir, his sister, of an irredeemable disposition she had got of these lands just two days before his heritable bond, as fraudulent, on the Act of Parliament 1621.
Answered,—This case falls not under the compass of that Act, which allows only anterior creditors to quarrel dispositions made by their debtors, as the actio Pauliana also did.
Replied,—In extraordinary cases, even posterior creditors are allowed, as in Street and Jackson's case against Mason, in 1673, because of the tract of the correspondence betwixt them. 2do, He must be reputed here an anterior creditor; because Weir, during his very communing to borrow Ralston's money, gives this disposition only two days before; and, ex propinquitate temporis, præsumitur dolus atque animus fraudandi. 3tio, The disposition bears only love and favour, and a declaration that it should be null if ever he returned home.
Kemney reduced the disposition ex capite fraudis et circumventionis, and, in respect of the qualities it bore, whereby it still remained to be in potestate et bonis debitoris; but, they craving the Lords' answer, the Lords, on this day, reduced the said disposition.
