Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION I.

Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. II.

Alienations ominum bonorum.

Henderson
v.
Anderson

Date: 18 November 1669
Case No. No 13.

A disposition bearing to be onerous, where the parties were not conjunct, being a disposition omnium bonorum, is set aside to the effect of making the disponee account.

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Hewat having made a general disposition of his whole goods and gear to Anderson; and thereafter having disponed to Henderson, his creditor Henderson pursues Anderson for reduction of his disposition, as being fraudulent in prejudice of creditors, without any equivalent cause onerous, contrary to the act of Parliament 1621, against fraudulent dispositions.—The defender alleged, That the reason was not relevant upon the said act, because Hewat and Anderson were not conjunct persons, and because his disposition bore an onerous cause, viz. for sums due to himself, and for 2000 merks, and other sums, for which he was cautioner for Hewat, and gave in a condescendence of the particular sums, and offered not only to depone thereupon himself, but to astruct the same by the oath of Hewat's creditors to whom he paid.—The pursuer answered, That albeit ordinarily dispositions amongst persons not conjunct, bearing causes onerous, were sufficient; yet this disposition being manifestly fraudulent, in that it is omnium bonorum, which the receiver thereof could not but know to be in prejudice of the disponer's other creditors, to whom there was nothing left, and so is particeps fraudis; and likewise the sum of 2000 merks, which is the only cause specially expressed, being instructed to be false by discharges of the most part of that sum by the creditor to Hewat himself, the remainder of the cause being general, ought to be instructed not by Anderson's oath, but by sufficient probation, at least the verity of the debt by Hewat's oath, and the payment thereof by the oaths of Hewat's creditors, to whom it was paid; and that it was paid by Anderson before the disposition, at least that he was bound for payment thereof before the disposition.—The defender answered, That dispositions of moveables are valid without any writ, especially before any diligence done by the pursuer; and if those who acquire moveables were obliged to instruct the cause otherwise than by their own oaths, all commerce would cease, and the defender having taken a disposition in writ, can be in no worse case than if he had none.

The Lords having considered the defender's condescendence, found, That what was due to the defender himself by Hewat before the disposition, should be sufficiently instructed by Anderson's own oath; but as to what was due to him, or paid by him for Hewat, after the disposition, and before any right or diligence of Henderson's, that the same should also be allowed, being instructed by Hewat's oath, and those who received the sums; and that accordingly Anderson should accompt for the whole goods he meddled with, and pay the superplus thereof to Henderson the pursuer, over and above the said articles.

Stair, v. 1. p. 652.