Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. III.
Alienations in favour of Conjunct and Confident Persons.
Scrymzeor of Kirkton v. Lyon of Bridgeton
Date: 20 July 1694 Case No. No 33.
A disposition by a person insolvent, but against whom no diligence had been done, in favour of near relations, reduced.
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Scrymzeor of Kirkton contra Lyon of Bridgeton, for reduction of a disposition made by James Lyon, when he was in meditatione fugæ, to Morison his nephew, for implement to his wife of her matrimonial provision in the first place, and for payment of a tocher due by him to his son-in-law with his daughter in the second, and to Morison himself in the third place, and to his creditors ultimo loco.—Alleged, It was not reducible, seeing he was not then under legal diligence at his creditor's instance, neither had he sled, but retired some days after; so this cause neither quadrated with Lanton's and Sir Thomas Moncrieff's, (p. 884.) nor with Clackmannan's Creditors' debate with Miln of Carridden. And as to his preferring his wife and daughters, this was no partial gratification nor preference, he not being then a legal bankrupt, and they being creditors by anterior obligements.—The Lords resolved to hear this cause in presence.
1696. January 28.
Halcraig reported Scrymzeor of Kirkton contra Lyon of Bridgeton, and others, mentioned 20th July 1694, for reducing a disposition granted by James Lyon, merchant in Dundee, in favours of his nephew, son-in-law, and other relations, as in defraud of his lawful creditors. Alleged, He was not notourly bankrupt nor insolvent at the time of his granting this disposition, seeing he had neither retired, nor were there diligences by horning, &c. against him; and so he fell under none of the heads of the act of Parliament 1621, for though it was to conjunct persons, yet they offered to prove the antecedent onerous causes by their contracts of marriage, &c. and he did not gratify and prefer one creditor to the prejudice of another's diligence, for there was no diligence then against him. Answered, That excellent statute obviated the frauds then discovered; but the actio Pauliana, et de dolo malo in the common law were much larger; and this was as plain and palpable a fraud as any; the man was obæratus, and resolving to fly immediately, prefers all his nearer relations, and ranks his true and onerous creditors in the last place; but if the order in which he places them stand, all is exhausted, usque ad peram before the creditors get a sixpence; and so here is fraud both in consilio et eventu; and the Lords have oft proceeded on the grounds of the common law, as in the famous case of Street and Jackson against Mason, (infra h. t.;) and Reid against Daldilling, 4th December 1673, Stair, v. 2. p. 234. voce Fraud.——The Lords found the disposition fraudulent, and reduced it. There was a separate allegeance, that one of them ranked in the disposition was no conjunct person but a stranger, and so utile per inutile non vitiatur; the disposition must subsist quoad his sum. This was not decided.
Fol. Dic. v. 1. p 67. Fountainhall, v. 1. p. 635. & 705.
