Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. II.
Alienations ominum bonorum.
Brown v. John Drummond
1685.
February. Case No. No 17.
A disposition omnium bonorum, infers bankruptcy.
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One Trinch having granted to John Drummond a factory in rem suam omnium bonorum, for sums of money, and other good causes and considerations, narrating that he was indisposed to go about his own affairs: Against this disposition, it was alleged, by a competing creditor of the granter's, That the disponer was thereby reduced to the state of a notour bankrupt; so as he could not gratify the receiver, though no diligence had been done him by his creditors.
Answered: Though a bankrupt cannot gratify, he may dispone by way of commerce; and the factory bears onerous causes, and sums of money then re-reived; and Drummond being no conjunct person, is not under any necessity to instruct the onerous cause otherwise.
The Lords found, That, in quantum, the onerous cause was antecedent to the factory in rem suam, which, in effect is a disposition; Trinch, by the disponing his whole goods and debts, was in the state of a bankrupt, unless a farther estate could be condescended on; and decerned the pursuer and defender to come in pari passu as creditors: And it was acknowledged that the debts due by Trinch, before the factory, were the onerous cause of it.
