Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECTION I.
Of Onerous Alienations.
Creditors of Mr George Campbell v. Lord Newbyth, and Others
Date: 25 November 1696 Case No. No 8.
Prior to the act 1696, regarding bankrupts, the Lords refused to reduce heritable rights granted by a party to some of his creditors, though it was urged by other creditors pursuers, that he was bankrupt at the time.
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Philiphaugh reported the concurring creditors of Mr George Campbell in the Cannongate, against Lord Newbyth, Drummond of Calander, and Sir Francis Kinloch of Gilmerton. The action was a reduction of their rights on the act of Parliament 1621, being heritable bonds after he was bankrupt; the qualifications whereon they insisted for inferring it were, 1mo, The fama clamosa and general report that he was broke; and de facto he was then L. 20,000 more in debt, than all his effects and estate could pay. 2do, He was then lucking and concealing some of his moveables. 3tio, He was treating with his creditors, offering rhem a disposition omnium bonorum, upon their granting him a personal protection. 4to, Several creditors had proceeded to diligence by charging, inhibiting, and arresting.—Answered to the first, Fama is not nomen juris, but ost a great liar. 2do, A rigid creditor may force a very responsal person to abscond for a time, and yet not be bankrupt. To the third, The defenders knew nothing of any such treaty, and so were in bona fide to take and infeftment from him. To the fourth, The creditors who had done diligence, may, on the last clause of the act of Parliament 1621, quarrel the defenders rights, but that cannot operate for the rest of the creditors who had done none; yea, in 1627, Scougal contra Binny, No 1. p. 879. the Lords preferred an assignee by a bankrupt who had timeously intimate his right, and that before his other creditors.——The Lords having weighed this condescendence, found the articles did not amount to what was alleged in Sir Thomas Moncriess's case against Lanton;* and though there was a standard set now for knowing bankrupts, after which they could do no voluntary deed to the prejudice of the rest of their creditors, yet that only took place pro futuro, and could not regulate this case; and therefore assoibilzied Newbyth and Calander from the reduction. And as to Sir Francis Kinloch, the Lords found the tranfaction made by Alexander Chaplain, his agent, about lending the creditors his caption, could not oblige him, unless it was done by his order and mandate: But if Sir Francis was in the possession of these house rents, and yet dismissed the tenant after he was in the messenger's hands, he must be liable to compt for his rent as if he had received it; because by a fact and deed of his it comes to be lost and he debarred the other creditors from those house mails by his prior right; and so was liable in diligence; and it is more reasonable it should perish to him and not to them.
Fol. Dic. v. 1. p. 66. Fountainhall, v. 1. p. 736.
