Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1686 and 1687.
Scott of Harwood's Real Creditors v. his Personal Creditors
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1686. February 19.—Scot of Harwood's Real Creditors, viz. Sir William Ker of Greenhead, &c. competing with Goldilands and his other Personal Creditors, or adjudgers, who craved the real Creditors' rights to be reduced, because granted to near relations by one in meditatione fugæ, though not under any diligence at the other creditors' instance; in so far as that, finding himself broken, he convened his friends, who were bound for him as cautioners, and discovered to them his condition, and gave them thir infeftments of relief amongst them, which eventually, and all conjoined together, prove to be a dispositio omnium bonorum, though granted at sundry times; which was an unwarrantable gratification, prohibited by the Act of Parliament 1621. Answered,—That act only takes place where creditors have done diligence; and here there is none; and the receivers are creditors for most onerous causes, et sibi vigilarunt.
The Lords, before answer, granted a mutual probation anent his condition the time of his granting thir dispositions, viz. if he was bankrupt, or holden and reputed solvent at that time; and if he convocated and gathered his friends together, and privily disclosed his case to them; for that made it a machination and contrivance, and them participes fraudis. Vide 18th Nov. 1687.
Vol. I. Page 405.
1687. November 18.—The Lords advised the probation led between Scott of Goldilands, and the other Creditors of Scott of Harwood, and Sir William Ker of Greenhead, and the other real Creditors infefters, on the other hand, mentioned 19th February 1686; and assoilyied the real Creditors from the reduction on the Act of Parliament 1621, because, though they were the bankrupt's near relations, and amongst them had got dispositions omnium bonorum, and had prevented other diligences, yet the dispositions were but partial, and not granted all at one time; and he was not under horning and inhibition at the pursuer's instance; and no contrivance, machination, or concealment was proven; and it appeared he was then esteemed solvent, and got credit in the country, and was Sheriff-depute of Roxburgh at the time.
