Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XI.
The Onerosity of Provisions in Favour of Children.
Sir James Campbell of Cesnock v. Sir Alexander Murray of Black-barony
Date: 11 February 1697 Case No. No 86.
The posterior insolvency of a father, no ground for reducing a blank bond filled up by him in name of his for, and delivered.
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This declarator was, that the 23,000 merks, now in Forth's name, was truly the Earl of Melfort, his father's money, he being then an infant in familia, and had no other way of acquiring, (it not being pretended it was a peculium adventitium flowing from any other by donation, succession, or otherwise,) and therefore was liable for the father's debt, and affectable by his creditors, as was found June 19, 1668, Nasmith of Posso's Creditors against his son, Stair, v. 1. p. 530. voce Heir Apparent.—Answered, Esto it was Melfort's money, what hindered him, being then solvent, and under no legal restraint and incapacity, to fill up his son's name therein, or give the same to his son, and who will be preferable to his father's creditors who had done no preferable diligence to affect it ?——The Lords inclined to prefer my Lord Forth's right as preferable, unless they could say, insolvent. Then Cesnock repeated his forthcoming, and craved to be preferred, because he had arrested prior to the filling up of Forth's name in these blank bonds, at least prior to any intimation of his being creditor therein; and so esto he had been assignee, a creditor of the cedent's arresting before intimation affects it nexu reali.—Answered, 1mo, They denied it was Melfort's money. 2do, Esto it were, Cesnock was not then creditor to Melfort, not having then constitute his debt of the bygone intromissions with his estate.—Replied to the first, They opponed Blair Drummond's oath, bearing he filled up Forth's name by Melfort's order, which proves the money was Melfort's. To the second, Though Cesnock had not then obtained a decreet against Melfort, yet he was creditor by the general act rescissory in 1690, and by his special act; and had raised his summons and arrested thereon.——The Lords preferred Cesnock on his arrestment, and decerned Blackbarony, the debtor, to pay him. See Blank Writ.
Fol. Dic. v. 1. p. 72. Fountainhall, v. 1. p. 766.
