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Scottish Court of Session Decisions >>
Mr David Watson v Robert Malloch. [1681] Mor 883 (00 November 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Mor0300883-006.html Cite as:
[1681] Mor 883
Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECTION I.
Of Onerous Alienations.
Mr David Watson v. Robert Malloch
1681.
November. Case No. No 6.
Found that the disponee must condescend on the onerous cause, to be instructed only by his oath.
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A disposition being quarrelled on the act of Parliament 1621, it was alleged for the defender, That the disposition was made ante contractum debitum.
Answered: The disposition was in trust for the behoof of the common debtor; and the defender having deponed, That it was not in trust, but that it was for an onerous cause;
The Lords ordained the defender to condescend on the onerous cause, to the effect that the disposition being applied that way, might extinguish that cause, so as it might not compete with the other creditors, the common debtor being bankrupt; although if it had been ex dono, it could not have been quarrelled by his posterior creditor; but the condescendence of the onerous cause was to be instructed only by the defender's own oath.
