Effect of Mora in the conduct of the Creditor Reducer.
Bateman and Chaplane v. Hamilton, &c
Date: 27 January 1686 Case No. No 161.
A disposition omnium bonorum, by a person obæratus, reduced, in so far as to the prejudice of creditors who had charged him with horning; although there was no denunciation nor registration at the time; and some of the creditors seemed in mora, by not denouncing for a month after.
See No 158. p. 1067.
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Alexander Chaplane, writer to the signet, having raised a reduction of a disposition omnium bonorum, granted by Sir George Drummond, late Provost of Edinburgh, in favours of Bailie Thomas Hamilton, and two or three more of his creditors, in prejudice of all the rest, and especially of the pursuer, who had charged him with horning prior thereto, on the act of Parliament 1621, and that he was then in meditatione fugæ, and could not prefer one creditor before another. The Lord Castlehill, who heard the cause, reduced the said disposition.
But, on a bill, this being heard in presence on the 9th of February, it was then alleged for the defenders, that the first branch of the act of Parliament does not reach them; because it only concerns dispositions made by bankrupts, to conjunct or confident persons without onerous causes; but ita est this disposition was for most onerous causes of debt and cautionry, and they were neither conjunct nor confident to the Provost. 2do, It was not dispositio omnium bonorum, but he had a real estate behind. 3tio, His shop being in commercio, they might bargain for the same, even as they might have bought 100 ells of cloth from him after these hornings, and paid for it, and it could not have been evicted, nor quarrelled, on this act. 4to, Non cessit foro, for some time after this disposition; and a naked charge of horning, without being denounced or registrated, did not incapacitate him. See Durie, 31st January 1627, Scougal, No 1. p. 879.; Paterson against Edwards, Durie, p. 471. voce Fraud; and 2d February 1632, Jack, No 25. p. 897.; Stair, 8th January 1669, Preston, No 26. p 897; and 3d February 1672, Home, No 4. p. 881.; and the decision, January 1682, Cunningham, &c. against Hamilton, No 30. p. 902.; where dispositions made by bankrupts, even that same day they fled, were sustained, where no previous diligence was done against them. 5to, The actio revocatoria pauliana cannot be founded on, unless it were subsumed that the receivers of the disposition were conscii as well as the granter; but so it is they were not participes fraudis; and that the Roman law in edicto fraudatorio made two distinctions; 1mo, Between him who had got a right from a bankrupt ex titulo oneroso, whose right was valid even against other creditors, unless he was particeps fraudis; and him who had only right ex causa lucrativa, as by donation; and there fraus in concilio of the granter, and in eventu, (though the receiver was ignorant of his condition,) was sufficient to annul it. 2do, Vel bona erant possessa ex praetoris edicto, (which answered to our diligences,) vel non. In the first case, the debtor could not any more gratify one creditor before another: In the second, he might prefer him qui vigilavit sibi; and if he found his debtor flying and abstracting money, poterat eum retrahere, l. 6. § 7. l. 10. § 16. D. Quæ in fraud creditor.
The President inclined much to bring in all the personal creditors pari passu with this disposition; for it was answered for the pursuer, that though it was not dispositio omnium bonorum, yet the rest was alienated before, and he had nothing remaining; and this was a selling per aversionem, and so not allowable in a bankrupt; and that a charge of horning was sufficient, they being in cursu diligentiæ, and before the days of the charge were expired, he in defraud had disponed; and they were not in mora, but denounced him after the six days; and if it had been a compleat diligence by a registrated horning, then it would have been preferred of itself, and needed not the help of this statute; and the words of the act of Parliament are, that he shall not gratify nor prefer to the prejudice of those who have used horning; now a naked charge is to use it.
This debate being advised on the 17th of February, the Lords reduced Provost Drummond's disposition in so far as it prejudged Chaplane and Bateman, the two creditors who had charged him with horning before the date of it, albeit he was neither denounced nor registrated then; though Bateman seemed in mora in forbearing to denounce for a month thereafter, and though the receivers were not couscii fraudis. But they did not determine if this would bring in all the rest of the personal creditors, who had done no diligence, pari passu. See No 158. p. 1067.
Fol. Dic. v. 1. p. 80. Fountainhall, v. 1. p. 396.*** Harcarse reports the same case:
Alexander Chaplane having charged Provost Drummond with horning upon the 24th August; upon the 26th, the Provost made a disposition of the merchant goods in his shop to four of his creditors primo loco, and some other creditors 2do et 3tio loco; and, upon the 31st day of the said month, immediately after expiring of the six days of the charge, he was denounced and registrate by Chaplane. The provost was charged also upon the 15th of August by Major Bateman, and denounced and registrate the 8th September thereafter; a reduction of the foresaid disposition being raised by Chaplane and Bateman, as made in prejudice of their diligences;
It was alleged for supporting thereof, That the Provost was not looked upon as a bankrupt, but of good reputation and credit at the date on't; nor was it a gratuitous disposition omnium bonorum, but of a part of the granter's goods for cautionry; and the pursuer's diligences were not complete before the disposition, as the act of Parliament requires.
Answered: Not only by the act of Parliament 1621, but by the civil law, the diligences of creditors cannot be anticipated or prevented in cursu; and, if it were otherwise, all diligence might be disappointed by provoked debtors, seeing it requires a tract of time to complete it; and, though the disposition quarrelled was not omnium bonorum, yet the Provost, about the same time, made two other dispositions of his whole estate, and was thereby in the case of a bankrupt.
Replied:—Bateman's diligence was not sufficient, in respect of his negligence to denounce after the days of the charge, which he might have done before the date of the disposition.
Duplied: Creditors cannot be obliged to so exact diligence; and it is ordinary to wait some time after the elapsing of the days of the charge, to see if the debtor will pay before he be denounced.
The Lords sustained the reason of reduction, in so far as it prejudged the foresaid diligences of Chaplane and Bateman.
