Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. II.
Alienations ominum bonorum.
Brown v. Watson and Drummond
Date: 10 February 1685 Case No. No 18.
A party against whom no diligence had been done, granted a disposition omnium bonorum to two of his creditors. Found, that by such a disposition he became bankrupt, and a third creditor brought in pari passu.
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Margaret Brown being a creditor to , pursues Watson and Drummond, as vicious intromitters with her debtor's goods and gear, for payment of her debt.—In this process it was alleged, That he could not be liable as a vicious intromitter, because any intromission he had, was by virtue of a disposition from the common debtor, for payment of the debts resting to him.—It was answered, That notwithstanding of the disposition, the pursuer ought to come in pari passu with the debtor as to the goods contained in the disposition effeiring to his debt, in respect it was a general disposition omnium bonorum, of all debts, sums of money, goods and gear in general, without condescending upon any particular; and bore in the narrative, “That for as much as the disponer was not able to go about his own affairs, and that he knowing the diligence and activity of the defender, wherefore, and for sums of money, and other onerous causes, and good considerations he disponed, &c.;” because the said disposition was granted on death-bed, and was by a bankrupt, seeing the disposition being so general, “without condescending upon any particular,” he could have nothing remaining.—It was replied, That the disposition, though omnium bonorum, ought to be sustained in quantum, the defender shall prove, that he was creditor ab ante; and the presumption that it was fraudulent, as being omnium bonorum, is sufficiently taken off by the defender's proving, that antecedent to the disposition he was creditor.—It was duplied for the pursuer, That a disposition from a notour bankrupt could not be sustained to the prejudice of other creditors, and that the Lords have decided in the like case, where diligence was done by neither of the creditors, that the creditors should come in pari passu, notwithstanding of a disposition of that nature.——The Lords found, That diligence being done by neither pursuer nor defender, and that by the disposition he was notour bankrupt, nothing remaining that was not comprehended in the general clause of the disposition, that therefore the pursuer and defender ought to come in pari passu, effeiring to their debts, notwithstanding of the disposition.
Fol. Dic. v. 1. p. 67. President Falconer, No 98. p. 68.*** Sir Patrick Home reports the same case thus:
March 1685.—Margaret Brown having pursued Watson and Drummond for payment of a debt due by——her debtor, as vicious intromitter with his goods, alleged for the defenders, That they could not be liable as vicious intromitters, because any intromission they had was by virtue of a disposition from the common debtor, for payment of the debt.—Answered, That notwithstanding of the disposition, the pursuer ought to come in pari passu with the defenders, in respect it was a disposition omnium bonorum of all debts, sums of money, goods and gear belonging to him; by the granting of which disposition, ipso facto, he became bankrupt, and so must be presumed to have been granted in defraud of the pursuer's debt.—Replied, That albeit the disposition be omnium bonorum, yet it ought to be sustained in so far as the defender can instruct that he was a lawful M creditor, prior to the disposition, which take off the presumption of fraud; and that it was lawful for him to take a disposition from his debtor for payment of his lawful debt, seeing there was no diligence done against him.——The Lords found, That there being no diligence done by either of the parties against the common debtor, and by the general disposition he became bankrupt; therefore the pursuer and defenders ought to come in pari passu effeiring to their debts.
