Reduction not Sustained, even after Diligence, if the Debtor be not Insolvent, nor rendered so by the Alienation.
Alexander Miln of Carridden v. Sir William Nicolson's Creditors
Date: 19 November 1697 Case No. No 136.
Actual in solvency allowed to be proven, tho' the debtor was not at the time of alienation publicly known to be bankrupt.
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Alexander Miln of Carridden pursues a reduction against some of Sir William Nicolson's creditors on the act of Parliament 1621; that either their debts were contracted, or else they had taken bonds of corroboration in security of their prior debts, after he had charged the common debtor with horning in 1685.—Answered, He was not in the terms of the act of Parliament, unless, 1mo, He say, that Sir William was dyvour or bankrupt. 2do, That his diligence was compleated by denunciation before granting their rights.—Replied, He needs not allege notour bankrupt. It is sufficient if he prove Sir William was then obæratus and insolvent. And for the second, the act makes the using of a horning sufficient diligence; so where one has charged, it cannot, in propriety of speech, be denied, but he has used horning.—Duplied, If he had immediately prosecute the charge, there might be some pretence to found this reduction; but he was so far in mora that the denunciation and registration was ten or eleven months posterior to the charge, and their rights intervened,—Triplied, Any time within the year was sufficient, no law requiring a denunciation sooner; and, by many decisions, rights after a charge of horning (though prior to the denunciation) have been reduced as in defraud, 12th February 1675, Vietch contra the Executors of Ker and Pallat, No 127. p. 1029.; 18th July 1677, Murray of Keillor against Drummond, No 139. p. 1048.; January 1681, Bathgate contra Bowdoun, No 140. p. 1049.; and in the case of Cockburn's creditors, (infra, h. t.)——The Lords considered, That a charge of horning was a foundation either for affecting the personal or heritable estate of the debtor; and that a charge of horning satisfied the terms of the act of Parliament; therefore they sustained Carridden's reduction, he proving Sir William's insolvency at that time, though his condition was not then so propaled as to make him holden and repute a notour bankrupt, the standard being but lately fixed by the act of Parliament containing a notour bankrupt's marks and definition.
Fol. Dic. v. 1. p. 77. Fountainhall, v. 1. p. 796.
