Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION II.

Alienation after Diligence.
Subject_3 SECT. V.

What Diligence sufficient to found Reduction upon the act 1621.

James Brown, Advocate,
v.
Campbell of Gargunnock, Doctor Brisbane, and other Creditors of Bruce of Kennet

Date: 9 January 1696
Case No. No 147.

An inhibition raised against two conjunct debtors, and executed against one of them, was found sufficient upon the second clause of the act 1621, to reduce a disposition, granted by the other in prejudice of the inhibiter, who was in cursu diligentiæ.

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In 1678, When Clackmannan broke, Bruce of Kennet, one of his cautioners, grants a disposition of his estate to Rebort Bruce, his uncle, for the behoof of himself and his own proper creditors, whose names are both insert in the body of the disposition, and in a list a part, whereto the disposition is made relative; and infeftment being taken thereon, a decreet for mails and duties is obtained before the sheriff depute of Clackmannan to render it public. James Brown and other creditors of Clackmannan, who had likewise Kennet cautioner in their bonds, raised a reduction of this disposition as done to their prejudice, preferring his own creditors, and omitting them, and falling under the act of Parliament 1621, in favours of a conjunct person, and who was now dead, and so his right could not accresce to the rest mentioned in the disposition, till it were established in the person of some representing Bruce the fide-commissarius; and the decreet was null, seeing Clackmannan was denuded of the jurisdiction of the sheriff ship by diligences, and so his depute's right fell in consequence.—Answered, The presumption arising from his being the disponer's uncle, is elided two ways; both by instructing the onerous adequate causes, and that he is in most of it but a trustee for the other creditors behoof, who cannot be prejudged by his decease, nor put to a tedious diligence for denuding his heirs; and Clackmannan's deputes being in the exercise of the office, by holding courts uncontroverted, it was sufficient to sustain the decreet on the Roman practique of Barbarius Phillipus. And as to the qualification of his being bankrupt, the debts for security whereof he dispones, are within 60,000 merks, whereas the lands are worth 100,000; and in considering him to be bankrupt, not only his estate must be reckoned, but also the estate of Clackmannan, the principal debtor, and Newton's, and the other co-cautioner's lands, (against which principal he would have relief in solidum, so far as the estate can afford, and against his co-cautioners pro rata,) all which must enter in computo; and after calculating between the debts and the whole estates in cumulo, he cannot be repute bankrupt, unless the debts exceed the whole.—The Lords found the taking the disposition in Robert Bruce's name, could not exclude the creditors from founding on it, though he was dead; and that the decreet was obtained before a competent judicatory, being then holden and repute such; and that he could not be esteemed bankrupt, till not only his estate, but also those of the principal and co-cautioners were also computed, the whole being the subject of the creditors payment, as well as Kennet's estate considered alone: And found his disposition of lands, in security of sums, far within the value of the lands, could neither make him bankrupt, nor be called dispositio omnium bonorum. James Brown also founded on an inhibition he had raised against them before the said disposition, and executed against Newton, one of the cautioners, before the said disposition, though not against Kennet.—The Lords found this inchoate diligence sufficient to put him in the case of the act of Parliament 1621, discharging voluntary deeds in prejudice of creditors doing diligence. See Gordon against Seaton, Stair, v. 2. p. 360. voce Inhibition. It was also urged, this disposition was farther quarrellable, not only from the common law of actio Pauliana, but on the head of the said act, requiring the right to be for just, onerous, true and necessary causes; whereas this could not be called a necessary cause; for though suberat causa debiti anterior, yet nullum jus cogebat ad disponendum; likeas the disponer continued still in possession, which was dare et retinere: Next the leaving of blanks for inserting creditors names in dispositions, lays a foundation, and opens a door to fraud; for quomodo constat these names were all filled up before the other creditors legal diligences. And, on this ground, the Lords, on the 15th of January 1670, Lady Lucie Hamilton against Dunlop, &c. Stair, v. 1. p. 660. voce Presumption, found they were bound to prove the time of filling up these blanks, else it was to be presumed they were filled up after the inhibition; and there may be yet more legerdemain and shuffling in lists of creditors signed a part, whereto dispositions are sometimes made relative; for these may be altered and changed at pleasure. But these points were not decided at this time.

Fol. Dic. v. 1. p. 78. Fountainhall, v. 1. p. 697.

Observe, that in the case Miln against Nicolson's Creditors, No 136, p. 1046, the Lords considered that a charge of horning is a foundation for affecting either the personal or heritable estate of the debtor; and that it satisfies the terms of the act 1621. They sustained a simple charge of horning, as sufficient to reduce securities granted afterwards to other creditors, the common debtor's insolvency at the time being proven.