OBSERVATIONS Upon the 28. Act, 23. Parl.


AGAINST Dispositions made in defraud of Creditors, &c.

By Sir George Mckenzie of Rosehaugh.


EDINBURGH, Printed by His MAJESTIES Printers: Anno DOM▪ 1675.


THe easiest and plain­est part of our Law, are our Statutes: for these are by Print­ing exposed to all mens view, and are drawn to instruct the vulgar in what they must obey. And this Statute against Bankrupts, must be presumed to be amongst the easiest and most intelligible; because it is founded upon the evident principles of equity, and [Page] reason, and was first drawn by the Lords of Session, and after some years trial, was renewed by the Parliament, who would have plain'd what was obscure, and supplied what was defective: And yet I am afraid that albeit the Statute be very full, and my Observations upon it be very clear, that yet it will appear convincingly that the knowledge of the Law is not easie, and that none should pretend to it, but such as have illuminated their excel­lent natural parts with laborious Learning, and have polish'd that Learning by a long Experi­ence.

[Page]I have not debated fully the cases here related, that being fitter for Pleading then Trea­tises; nor have I set down all the cases that occurred, lest the Reader should think I industri­ously designed to confound him, the more to magnifie the neces­sity of Lawyers. It cannot be denyed but many now in my condition could have treated this Subject, both more pro­foundly, and delicatly, but yet I may say that nothing here is against Law, since all these Sheets have had the approbati­on of one of the ablest Lawyers [Page] in our Nation, who can neither deceive, nor be deceived in his own profession.

These Sheets are but a part of a greater work, wherein I resolve to clear, 1. What Acts are in desuetude, or abrogated. 2. How each Act is interpreted by the Lords decisions. 3. What new doubts may arise from each Act, though not yet decided. 4. Where­in our Statutes agree with the Civil Law, or Laws of other Na­tions. And thus I hope to make all our Acts of Parliament intel­ligible and plain.


The words of the Rubrick, or Inscription of this Act, are,

‘A Ratification of the Act of the Lords of Council and Session, made in July, 1620. against unlawful Dispositions and Alie­nations, made by Dyvours and Bankrupts.’

FOr the better under­standing of the Inscrip­on or Rubrick, it is fit to know, that the word Bankrupt, which is the translation of the La­tine Banciruptor, is in the Original but a barbarous word, either derived from the French word Banque, or the Italian Banco, and the word rumpere: [Page 2] because when Merchands became Bank­rupts, they broke, either the seat upon which they did sit; or the bank or table, at which they did sit, as Salmas. observes, in Pref. de usur. pag. 511. But now the word Banciruptor, is taken not only, pro mensulario; foro cedente, but for any Mer­chand, or any other person, who has con­tracted more debt, then he is able to pay, as Vegnern observes. pag 8. They are called likewise decoctores, quia rem suam coquen­do diminuunt, decoquere signifying dimi­nuere, Bud. ad l. si hominem §. quoties ff. deposit. In Italy they are called falliti, & cessantes, Boer. decis. 215. but in the Civil Law the true Latine word is fraudatores; l. 4. ff. de curat. bon. dand.

They are likewise by this Rubrick cal­led Dyvour, or Dyour; from the Irish word Dyer, as I conceive, which signifies a knave; and they are likewise called bair­man in our Law, l. burg. cap. bairman. 144. & de jud. cap. bairman 46. Though our learned Skeen does in de verb signif. verb. Dyvour, make Bankrupt to be the same with him who has obtained a cessio bono­rum, & qui bonis cessit: yet these differ very [Page 3] much, for a Bankrupt is he only, qui foro cessit, sed qui bonis cessit, forum retinet, & bona creditoribus in solutum dedit, Hotto­man. de verb. sig. verb. credere, caedere for [...] est facti, caedere bonis est juris, and he only who has lost his estate by accident, without his own [...]ault, was allowed bonis caedere, bancciruptor dicitur, qui dolo casuve non solvendo factus est. Venger. ibid. How the word Banckrupt is taken in this Act, may be justly doubted, for by the Rubrick of the Act, it would appear, that this Act strickes only against disposi­tions which are made by persons insol­vent, and whose estate is not able to pay the debt due to the reducer; for the Ru­brick of the Act beares, to be against dis­positions made by Bankrupts or Dyvours▪ so that these two, are made pares termini; and therefore, since a Dyvour is a per­son who is insolvent; it seems that this Act must only strike against Dispositions made by persons that are insolvent, per ar­gumentum à rubro ad nigrum: for Lawyers are very clear, that where either the Ru­brick is an intire sentence, or where any term used in the Rubrick, is explained [Page 4] by any equipolent, or exegetick word, that there the general term which is dubi­ous, is to be interpret according to the import of both these terms; and therefore, since the word Dyvour is only applicable to persons insolvent, the word Bankrupt must be likewise interpret only of these; and so the Rubrick running only against Dispositions made by persons that are in­solvent, it must follow, that only such deeds are reduceable, as are done to the prejudice of Creditors by a person that is insolvent. 2. This seems likewise conso­nant to reason; for if the Creditor can re­cover his debt, he is not prejudged, and so the design of the Act fails; and it were most unreasonable to trouble a person who has got a Disposition, ex­cept there be an absolute necessity. 3. This is most suitable to the common principles of Law, whereby nunquam recur­rendum ad remedium extraordinarium, quamdiu locus est ordinario, no more then in Physick, a member should be cut off where it can be cured; and therefore, a Creditor who may recover payment by or­dinary diligences, such as by the compry­sing, [Page 5] or arresting his Debitors Estate, ought not to be allowed to reduce all Dis­positions made by his Debtor, since om­nes actiones rescissoriae, and particularly actio Pauliana, sunt remedia extraordinariae, whereby the Magistrate has been by cheats of Debtors, and the fraudulent Dispositi­ons of such as contract with them, forced to rescind and annull the private pactions of parties, contrary to the ordinar and gene­ral principles. 4. This seems to be fur­ther clear, by the narrative of the Act, which runs only against dispositions which elude all execution of justice, whereby Creditors are defrauded of all payment, and many honest families come to utter ruine; neither of which expressions are ap­plicable to the case of Creditors, who may recover payment otherwise. Conform to which arguments, I find, that the Lords, upon the. 6. of March. 1632. in an Acti­on at the Laird of Garthlands instance, con­tra Sir James Ker, upon this Act of Par­liament did refuse to reduce an Infeftment; albeit a meer Donation, and made like­wise by the Grand-father to his own Grand-child, and that because the granter [Page 6] of the Infeftment was neither at the time of the granting thereof Bankrupt, and non solvendo, nor was he become such since; neither had the Creditor done diligence for his debt; and yet it might have seem'd in reason, that though dispositions, where there was an onerous cause, might have been sustained, there was no reason to al­low the same priviledge in favours of confident persons, for meer Donations. And upon the 10. February, 1665. the Lord Loure, having quarrel'd the Lady Craigs Infeftment, as being an additional Joynter, granted betwixt Husband and Wife, to his prejudice who was a Credi­tor, and had comprised the Estate; It was answered, that the disponer was nei­ther bankrupt, nor insolvendo, nor did the Compriser sustain any prejudice, seing the Lady was content, that the Lord Loure should be preferred to his Annual-rents by vertue of his Comprysing, providing he would assign the Lady to his Comprising pro tanto, that she might recover as much for satisfaction of her additional Joynter; which answer the Lords found relevant, the Apprisers prejudice being purged, as [Page 7] said is: but they ordained the Compriser, not only to be admitted to have access to the comprised Lands, by assignation in manner forsaid, during the Legal, but they likewise declared, that if the Lady redeem­ed not within the Legal, the Lands should be irredeemable, and the Lady should be totally excluded; which though it was but a trysting Interloquetor, do's confirm the former opinion. And though it may be alleadged, that a Disposition being once valid, when it was first granted, cannot become thereafter null by the disponers be­coming thereafter insolvent, yet this holds not in many cases in our Law; for we find, that Dispositions of less then the half of Ward-Lands, without consent of the Su­periour, become thereafter null, if as much of that Barrony be thereafter disponed, as will amout to more than the half; But in my opinion, though the rubrick of our Statutes may found a presumptive argu­ment for explicating the Text; yet it is not authoritative, for the Rubrick is not read in Parliament, and it is added to the Law, after it is past, carelesly without de­bate.

[Page 8] Our Soveraign Lord, with advice and con­sent of the Estates: The legislative power of Scotland consists in the Parliament, that is to say, the King and three Estates of Parliament; and though some think it more proper in our Law to say, Our Sove­raign Lord, and Estates of Parliament, as in all the Statutes, or Acts of the 18. Par. Ja: 6: then to say, Our Soveraign Lord, with advice and consent, &c. yet I con­ceive, the King Statutes, and they but con­sent, (though their consent be necessary) for his touching them with the Scepter, and not the being voted, makes them Laws; and in England, the King statutes with consent of Parliament, and upon their supplication, and therefore I under­stand not Craig. who Diag. 8. affirms Statutes to be constitutiones trium Regni ordinum, cum consensu Principis: for that is just to invert the statutory words of this, and many other Acts. Our old Acts being all past the last day of the Parlia­ment, did not express the statuting power in every Act; for in effect they were all but branches of one Act, and run, Item that, &c. and many of these Acts bear, It is sta­tute [Page 9] by the Parliament, and the King for­bids, as Acts. 13. 14. 1 Par. Ja. 1. which Intimats, that though the Parliament sta­tutes suffragando & consentiendo, yet the King only doth statute sanciendo, & prohi­bendo. Sometimes our Acts bear, It is sta­tute by the hail Parliament; and some­times, It is statute and ordained, without mentioning either King or Parliament; sometimes also they bear the determinati­on of Parliament, without speaking of the King, which was either where the King was to perform what was statuted, as 23. Act, Par. 1. Ja. 1. It is statute and ordained, that our Soveraign Lord shall gar mend his money. And by the 6 Act, 3 Par. Ja. 2. The Estates has concluded, that the King shall ride thorow the Realme; or else when the Estates are only to grant what is statu­ted, as in Commissions granted for uniting the two Kingdoms. But I find one Sta­tute bear, the King statuting without men­tioning the Estates of Parliament▪ viz. Act 19. Sess. 1. Par. 1. Ch. 2. but this is but meer inadvertance.

Ratifies and confirms an Act of the Lords of Session, &c. This was originally an [Page 10] Act past by the Lords of Session, when they do sit judicially, at which time it is marked in their books of sederunt, such and such men did sit. Thus the Hebrews disign­ed the books of the Old Testament, by the first words; and thus we still mark the Laws from the first words; and thus the old books of our Law are called Regiam Majestatem, because they begin so.

His Majesty, at the first institution of the Colledge of Justice, did allow the Lords of Session to conclude upon sick Rules, Statutes and Ordinances, as shall be thought by them expedient to be observed and keeped in their manner and order of proceeding, at all times, as they devise, conform to reason, equity and justice, his Grace shall ratifie and approve the same. These are the words of the 43. Act, 5. Par. Ja. 5. to the which Act, I think this act relates: but it would ap­pear, both by that Act, and by the power as here repeated, that the Lords of Sessi­on have only power to make orders re­lating to the regulation of their own house, and to the forms of Process. For this was indeed necessary for explication of their Jurisdiction, and possibly was implyed in [Page 11] their very constitution, without any ex­presse warrand: arg. l 2. ff. de jurisdict. but it seems that this general power cannot autho­rize them to make Statutes, and Acts relat­ing to the material distribution of Justice; such as, that all Writs should be null, ex­cept subscribed before witnesses, though they might have ordained, that Papers under the hands of their own Clerks, should be so subscribed: for if they could make Statutes, as to any thing else be­sides the forms of their own house, there needed no Parliament; for their Statutes might bind all the people in all things; and yet it may be objected, that by this argument the Lords of Session could not have made this Law, declaring Contracts amongst the Leidges, to be null; that touching upon one of the fundamentals of humane society, albeit they might have declared such a nullity, receiveable by way of exception, for that concerned only form of Process. But the Answer to this is, that the Lords, in making this Act, did not introduce jus novum, a new Law; but only adapted to our practice, the old Roman or Civil Law, [Page 12] which they might have followed in their decisions, without making any new Act of sederunt, as they do in most cases where the Civil Law is founded upon equity; as here; and where they are not deter­mined by either our former practice, or constitutions. And by the same princi­ple, both the Lords of Session, and the Parliament did in this Statute declare, that their said Act should extend to causes de­pending, or to be intented: whereas Sta­tues regularly are extended only to future cases; except where the Act declares what was Law formerly, as in this case.

We may then conclude these diffe­rences betwixt these Acts of sederunt, and Acts of Parliament, that Acts of sederunt can only be made concerning the formes of procedure, or to fix a constant decision for the future, in cases which they might have so decided, before their own Act: and it is their prudence, and our hapinesse, that they should rather decide in hypothesi, then in thesi. But Acts of Parliament should mainly be made to regulat new sub­stantial grounds of justice and commerce. [Page 13] But though this power of making orders for administration of justice, be properly, and principally their province, yet they have in this but a cumulative juris­diction with the Parliament, who may and do likewise make such orders, but the Parliament ought to do so sparingly, since forms are better known to the Lords of Session, then to them: and therefore, it seems that the power of making Acts, relating to forms, or of regulating forms already made, belongs particularly to the Lords of Session, both because of ther constitution, and experience. The Lords have been in use, not only to regulat their own Court by Acts of sederunt; but they have by the same power prescrib­ed regulations to other Courts, and thus as to the Justice Court in anno, 1591. years, they made an Act, that women, and socii criminis, might be received wit­nesses, in cases of Treason: and we find, that they have likewise regulated inferiour Courts, without any previous warrand, as is clear by the 19. Act, 23. Par. Ja. 6. where the Parliament ratifies an Act of Se­cret Councel and Session, which did or­dain [Page 14] and command, that no Process should be granted before inferiour Judges, on the first Summonds, but upon lybelled Precepts, and citations of fifteen dayes warning. And in anno, 1636. they made an Act of sederunt, appointing, that no consent of any inferiour Court should bind the consenter, except it were subscribed by himself, and that the assertion of the Clerk of that Court was not sufficient. Nor should this extention of their power seem unwarrantable; for, since they may reduce the Decreets of inferiour Courts, it seems most consequential, that they may regulat their procedure: but though the Lords of the Session pass the Bills be­fore the Justices, and advocat Causes from before that Court, it may seem strange, that they should have power to make Acts of sederunt, for regulating that Court, the jurisdictions Civil and Crimi­nal, being most distinct and different.

It may likewayes seem, both by the former Act allowing the Lords of the Session this power, and the Ratification of their Statute specified in this Act, that it is necessar, that all the Acts of sederunt, [Page 15] which relate not meerly to the regulating their own forms, should be ratified by the Parliament, though in the interim of Parliaments, these Acts should bind. And yet, de facto, we see very many Acts of sederunt to have full vigour, and force, without any such confirmation.

Before I begin to explain the words of the Act of Parliament, I shall offer this Analysis of it.

Either the Creditors who are defrauded, are such Creditors as have done no dili­gence, or such as have done diligence: if they be such as have not done diligence, then either the Dispositions quarrelled are made to conjunct persons, or not; if they be made to conjunct, or confident per­sons, either they are made for necessary and onerous causes, or not; if they be made for an necessary and onerous cause, they are valid, though made to conjunct or confident persons. 2. If these Disposi­tions be made without an onerous cause, then either they remain with the conjunct confident to whom they were made, or not; if they remain with him, they are re­duceable, either by way of exception, or [Page 16] reply. But if any third party, no way par­taker of the fraud, has lawfully pur­chast any of the Bankrupts Lands, for a just and true cause, then the Right is not quarrelable, but the Receiver is only lyable to make the same forthcoming to the Bankrupts true Creditors. 3. The fraud is probable by writ, or oath of the party receiver. 4. If the Creditors have done diligence by Inhibition, Horning, &c. Then the Bankrupt cannot in prejudice of these Creditors who have done diligence, dispone voluntarily any part of his Estate to defraud that diligence, in favours of another concreditor, who has done no di­ligence, or posterior diligence, or in favours of any interposed person to their behoof. And in this part of the Act, it is not con­sidered, whether the interposed person be a person conjunct, or not. 5. The Bank­rupts, the interposed persons, and all such as have assisted them, in advising, or practis­ing these frauds, are declared infamous.

Conform to the Civil and Canon Law, &c.

BEcause the Act of Parliament and Act of sederunt bear, that they have in this Act followed the Civil and Canon Law; We may justly assert that it were [...]t the Lords of Session understood exactly the Civil Law, and that it is the great founda­tion of our Laws and Forms. Thus we see, that Robert Leslies Heirs, are by the 69. Act, Parl. 6. K. Ja. 5. ordained to be forefaulted for the crime of treason com­mitted by their Father, according to the Civil Law; and forfaultor in absence, was allow'd by the Lords of Session, in Anno 1669. because it was conform to the Civil Law: and falshood is ordained to be pu­nished, according to the Civil and Canon Law, Act 22. Par. 5. Q. M. And that the Civil Law is our rule, where our own Sta­tutes and Customs are silent, or deficient, is clear from our own Lawyers, as Skeen, Annot. ad l. 1. R. M. c. 7. ver. 2. and by Craig, l. 1. Diag. 2. As also from our own [Page 18] Historians, Leslie, l. 1. cap. Leg. Scotor. Boet. l. 9. Hist. Camer. de Scot. Doctr. l. 2. cap. 4. And the same is recorded of us by the Historians and Lawyers of other Nati­ons; as For [...]a [...]. lib. 7. de gal. imper. Polid. lib. 1. Hist. Angl. Petr. d [...] amitis Geograph. Europ. tit. di Escosse: and Duck, de auth. jur. civ. lib. 2. cap. 10. And though the Romans had some customs or forms peculi­ar to the genious of their own Nation: yet their Laws, in undecided cases, are of uni­versal use. And as Boet. well observes, Le­ges Romanas à Justiniano collect as, tanta ratione & sermonis venustate esse, ut nulla sit natio tam fera vel ab humanitate abhor­ [...]ens quae eas non fuerit admirata. And K. Ja. 5. was so much in love with the Civil Law, as Boet. observes, lib. 17. that he made an Act, that no man should succeed to a great Estate in Scotland, who did not understand the Civil Law, and erected two professions of it, one at St. Andrews, and another ar Aberdene; and when K. James the second did, by the 48. Act, 3. Parlia­ment, ordain, that his Subjects should be governed by no foraign Laws, he design'd not to deny the respect due to the Roman [Page 19] Laws, but to obviat the vain pretences of the Pope, whose Canons and Concessions were obtruded upon the people, as Law, by the Church-men of these times.

It is also fit to know, that by the Civil Law many remedies were provided to secure Crditors against the cheats of their Debitors: As first, Actio Pauliana, so cal­led either from Paulus the Praetor, who did introduce it, or from Paulus the Lawyer, who did first advise it: by which Action Creditors might recall either the Estate moveable, or immoveable, dispon'd by their Debitor to their prejudice. 2. Actio in sactum, by which bona incorporalia, such as jura, & servitutes were recalled, when alienated, l. 14. ss. quae in fraudem creditorum. 3. Actio faviana, whereby Patrons might revoke that which was done by their freed men, to the prejudice of that fourth part or legittim which was due to them by the Law. 4. Actio faviana uti­lis, by which Minors who were adopted or arrogated, might revoke what was done in prejudice of their fourth part due to them. But though Snedwine calls this uti­lis faviana, yet it is a mistake; for Hotto­man, [Page 20] Gomezius, and others, do much more properly make this a species actionis Calvi­sia [...]ae 5. Actio Calvisiana, which was granted indifferently to Patrons and others. 6. Edi­ctum fraudatorium, which was competent, when the Creditor was to revoke what the Debitor had alienated, and which belong­ed to another, and not to himself: as if a Tutor had alienated the goods belonging to his Pupill, which Pupill, and not him­self, was Debitor.

The Action competent by the Civil Law▪ was called Actio revocatoria, so cal­led, because the Judge revoked what was done; and with us it is called an Action of Reduction, because the deeds so done are reduced or rescinded: And I find the word Reduction used by Civilians even in this sense, as by Panormitan, Concilio secundo, and others. And reducere does properly signifie informam pristinam instaurare, as is clear by Ulp. l. 3. ss. de Itin. act privato §. 15 And therefore we have elegantly called this an Action of Reduction, because the Judge was to restore the thing alienated in prejudice of the Creditor to its former con­dition, whereas the Reduction of Decreets [Page 21] was a term unknown to the Civil Law, they using only Appeals, and Revisions; but Reductions of Sentences is used a­mongst the Doctors, even in the same term and sense that we use it, as is clear by Gail. lib. 1. observ. 141. & 150. And the rea­son why it was necessar for Lawyers to in­troduce the necessity of such Reductions or Revocations, was, because in the sub­tility of Law, the alienation did ipso jure transferre Dominum, l. si sciens ss. de contra empt. And therefore it is that if such Re­ductions be not raised before the years of prescription, the alienation it self is valid, though within that time it might have been rescinded by this Action of Reduc­tion.

Though this Statute only declares all Alienations, Dispositions, Assignati­ons and Translations whatsoever made by the Debitor, of any of his Lands, Teinds, Re­versions, Actions, Debts, or Goods what­sumever, to be null; yet this is extended to Bonds granted, and to Tacks set by the Debitor, to the prejudice of his Creditor, for though neither Tacks, nor Bands, be comprehended under the Letter of the [Page 22] Law, yet the same parity of reason extends the Act to them; and in Laws which are founded upon the principles of reason, ex­tensions from the same principles are very natural, and in Laws which are introduced for obviating of cheats, extensions are most necessary, because the same subtile and fraudulent inclination which tempted the Debitor to cheat his Creditors, will easily tempt him likewise to cheat the Law, if the wisdome and prudence of the Judge did not meet him where ever he turned. But yet Bands, in so far as they are personal, do not prejudge the Creditor, nor fall they under this Statute: but only in so far as they tend to, and may be the ground of legall Alienation, by Comprizing, Poynd­ing, or other diligence to the prejudice of the Creditors, and by affecting the Debi­tors Estate. By the word Alienation, is meant not only an express transferring of the right, but any act whereby the domini­um or property is loosed to the Debitor, as if the Debitor should in prejudice of his Creditor, habere rem pro de relicto ut alius [...]um occupet, if he should relinquish any thing, upon design, that a conjunct or con­fident [Page 23] person might possess it. Discharges likewise by the Debitor, of a right compe­tent to him, are reduceable upon this Act of Parliament, though the word Discharges be not exprest in the Act, for by the com­mon Law, Competebat Pauliana, quando Creditor liberabat Debitorem suum acceptila­tione vel per pactum de non petendo. Where­in l. 1. §. 2. ff. h. t. agrees with l. 5. Basil. [...].

I doubt not but upon the same parity of reason, if a Debitor suffered a Decreet to go against him, dolose, and connived so far in prejudice of his Creditor, as to omit a competent defence; but the Creditor might reduce that Decreet upon this Act of Parliament, if he could instruct the con­nivance and collusion, and verifie the de­fences that were omitted, but without this collusion were clearly instructed, it were very hard to reduce a Decreet at the in­stance of a party, who needed not to have been called,

I likewise think, that if the Debitor should in prejudice of his Creditor suffer the term to be circumduced against him for not compearing to depon, that Decreet [Page 24] were likewise reduceable: And this was so found at the instance of Marjory Halybur­ton contra Morison, where though Morison was a singular Successor, and had got an Assignation to the Decreet obtained by collusion against Watte, by his Brother, yet the Lords ordained Witnes­ses before answer to be led for proving the collusion, and repon'd Watte to his oath, and ordain'd him to depon. But the diffi­culty there would be, how a Debitor could be compelled to swear▪ and I doubt not but in this case if the collusion were offered to be proven by the oath of him who ob­tained the Decreet, that the Decreet would be reduced, though the Debitor compeared not to depon: or if the Creditor pursu'd him, that [...]o casu he would be forced to de­pon, and that if he refused, personal Acti­on would be obtained against him, l. 3. §. 1. h. t. which allows Action to the Credi­tors, Si data opera ad judicium non vene­rit. [...].

Upon the same reason also, if my Debi­tor should by collusion prejudge his march­es by a transaction, meerly to prejudge me who was to secure his Estate to my self by [Page 25] a diligence for my debt; this transaction might be quarrel'd, as done in defraud of me his Creditor, which agrees with l. 13. Basil. h. t.

It is much debated amongst the Civili­ans, whether he is said to alienat in preju­dice of his Creditors who refuses to acquire an Estate that he might acquire, to the ad­vantage of his Creditors: As for instance, if he refused to accept of a Legacy, or to enter Heir, it would appear to me, that by the common Law, Actio Pauliana extends not to these cases, as is clear per l. quod au­tem ff. quae in fraud▪ qui autem cum possit aliquid qu [...]rere, non id agit, ut acquirat ad hoc edictum non pertinet & §. 2. p [...]oinde & qui repud [...]avit Haereditatem vel Legi [...]timam vel Testamentariam non est in eo casu ut hu­ic [...]dicto locum faciat. And the ordinary distinction allow'd by the Doctors in this case is, that aut agitur de jure de lato & quaesito, & hoc debitum quaesitum Creditor repudiare non potest, aut agitur de jure non del [...]to, aut saltem nondum quaesito licet de lato, & non prohibetur illud repudiare. But yet this decision of the Civil Law seems unreasonable, for since the Law was to se­cure [Page 26] Creditors, it was just that it should have secured them against all frauds, and what fraud is more malicious, then to ly out of an Estate by which the Creditor might be pay'd: or not to fulfil a condi­tion, by the fulfilling whereof, they might be put in a capacity to pay their Debt. And therefore our Law has much more justly by the 106. Act, 7 Par. Ja. 5. allowed, that the Creditor may charge his Debitor to enter Heir, whereupon the Estate may be apprised from the ap­pearand Heir, in the same way, and man­ner, as if he had entred Heir.

As also, by our Law, if a Legacy were left to my Debitor, if he designed to ly out of it meerly to prejudge me, who am his Creditor; yet the Law would secure me against this malice, either by allowing me to arrest the Legacy left in the hands of the Executor, if the Executor did con­firm that Testament wherein my Legacy was left, and so I might establish a right to the said Legacy in my own Person, by a Decreet to make forth-coming; or if the Executor should refuse or decline to con­firm the Testament. I the Legators Cre­ditor [Page 27] might confirm my self Executor, da­tive; and so in omnem eventum, secure my self against the fraud designed by my Debitor; but they are in a mistake who think, that I could have confirmed my self Executor to the Defunct, for the Defunct was not my Debitor, though he left a Legacy to my Debitor. The que­stion is yet harder with us, in conditional obligations, whereof I shall give two in­stances; one is, if by contract betwixt my Debitor and Titius, Titius were obliged to pay my Creditor 5000 merks; and upon the payment thereof, my Creditor were obliged to confirm Titius as his Vas­sel, but my Debitor finding that the said 5000 merks would accress to me, should upon that head decline to fulfil. The question is, how could I settle in my own Person a right to the said 5000 merks? And it is thought that the proper way were to comprise from my Debitor, that right by which he could have confirmed Titius; and having thus put my self in a condition to fulfil the condition upon which the 5000 merks was payable, I could either arrest the money in Titius hand, and force him to [Page 28] make it forth-coming, or else pursue an ordinary action against him, wherein I would conclude that he being obliged to pay 5000 merks to my Debitor, upon ob­taining a confirmation from him, should be now descerned to pay me the said 5000 merks, as having come in place of his said Creditor, by having comprised his right, and so being capable to pursue, and fulfil the condition whereupon the said 5000 merks was payable. But it is thought that the last part of the Alternative will not hold, viz. that there may be a personal Action for payment; and that because, al­beit the Creditor having comprised the right whereupon he may confirm, may ful­fil the condition, yet he cannot have right to the conditional obligation, so that he may pursue for payment, unless it be set­led in his Person by comprising, arrest­ment, or some other legal diligence.

The second case is, if Titius be oblidg'd to pay my Debitor 5000 merks, upon con­dition that my Debitor should build him a House: The question is, how I, if my Debitor be unwilling to fulfil, can establish a right to the said sum in my own Person. [Page 29] To which it may be answered, that either my Debitor was obliged expresly by way of mutual Contract, to build the said House to Titius: And then some think, that I may force Titius to asigne me to the Contract, and thereby I will force my De­bitor to fulfil his part; but yet I see not how he may be forced to asigne me, or from what that obligation can be infer'd. Others think, that I may arrest, and if when I pursue to make forth-coming, Ti­tius shall alledge that he cannot pay until the condition be fulfilled. I may eleid that allegeance by this reply, viz. sibi imputet, that he did not obtain the implement of that condition by registrating the Con­tract, and forcing my Debitor to fulfil. But I think the foresaid reply, sibi imputet, would not be relevant, seing the Debitor is secure; and it cannot be imputed to him that he did not pursue for implement, and as the Creditor of the conditional Debitor would not be heard to say sibi imputet, so this Creditor who can be in no better case; cannot reply upon sibi imputet.

But if my Debitor was not expresly ob­liged to build the said House, and that [Page 30] Titius was only bound to pay 5000 merks, when my Debitor should build him such a House. I conceive that eo casu, if my said Debitor designed to defraud me by not fulfilling the condition▪ our Law would allow me no remedy.

To be intented by any true Creditor.

A Creditor is he to whom we owe any thing; against which we cannot defend our selves by a perpetual exception. [...] Basil▪ de verb signif. l. 10.

By these words it clearly appears, that this Action is competent to all Creditors, whether they were Creditors for an one­rous cause, or not. For though it would appear by the narrative, that this Law was only designed to secure such as were Cre­ditors for an onerous cause; and albeit it would seem that the only reason why that this Law was introduced, was wanting here; since the Creditor did not lend out [Page 31] his money in this case, in contemplation his his Debitors Estate: Yet since in the construction of Law, even donations are good Rights, and the person to whom they are made becomes thereby Creditor; etiam donatarius est Creditor, post quam do­natio est completa (except in the case where the donation is revockable) therefore this Action is likewise competent to them; and so it has been oft decided in our Law.

Though Creditors whose term of pay­ment is not come, differ from such whose Debt is suspended by some condition, the one being called Creditor conditionalis, and the other Creditor in diem; which two differ both by the Civil Law, and ours; yet whether either of them be comprehen­ded under the general word Creditor, where that word is used in Statutes, is much de­bated. Cagn. adl. 1. ff. Si certum petetur is of opinion, that these are not true Cre­ditors, because a Debitor is he who may be forced to pay, l. Debitor: ff. de verb. sign. with which Law the Basilicks do agree, for l. 66. tit. Basil. de Reg. jur. [...], but so it is that he [Page 32] who owes to a day, or under a condition▪ cannot be forced to pay. 2. The Law cal­led a conditional debt, the hoop only of a debt. Ex conditionali just. de verb. obl. 3. These are called Creditors in this title quibus ex quacunque causa cum debitore est actio, but so it is that before the condition be purified, or the term of payment, there can be no Action, l. caedere diem, & l. Cre­ditores: ff. de verb. signif. But yet on the other hand, these are both Creditors, be­cause the Law makes Creditor to be genus, the species whereof is Creditor purus, Cre­ditor in diem, & Creditor sub conditione, l. Creditores ss: de verb. signif. 2. It is clear per l. Aquil. ss. ad l. Aquil. that a con­ditional Creditor may purlue to have his Debt payed, or secured, when the Term comes, though it be not yet come. 3. Il­le vere est Creditor, qui perpetua exceptio­ne non potest removeri, l. creditores, ss. de verb. sig. But so it is, that neither Credi­tor in diem, nor Creditor sub conditione, potest perpetua exceptione removeri. 4▪ In Reason it appears, that since when the con­dition is purified, the condition is drawn back to the date of the Contract; that [Page 33] therefore the conditional Creditor hath this remedy competent to him, glos in d. §. si quis in fraudem.

This Action then, is competent to Cre­ditors, to whom a Debt is conditionally owing; but is not to take effect until the condition be purified. As for instance, if Titius sell me his Lands with absolute war­randice, and thereafter dispone any part of his Estate, to a conjunct, or confident person, without an onerous cause, I might reduce that alienation as done in defraud of me, though the Lands sold to me were not evicted, and so the warrandice did not actu­ally take place. Which case though it be not expresly decided in our Law, yet I find a reduction ex capite inhibitionis sustained in thir very terms, but with this just cau­tion, viz. that the reduction should take no place till distress should follow, which is likewise decided by the Civil Law, l. Potior ss. qui potiores in pig. §. 1 where also the former caution is used, & ubi conditio purificata est, ibi conditio retrotra­hitur. 30. This Action is even compe­tent to these Creditors whose term of pay­ment is not come, though it may seem, [Page 34] that till then they are not true Creditors, The reason why both the Civil Law, and ours allow reductions in these cases, is com­only thought to be, least the Creditor to whom the alienation is made, become insol. vendo, and so the action of reduction, if delayed till then, would then become use­less. But if the Lands or others disponed, be still in their hands, it does not import whether they be insolvent or not, seing reductions are in rem, and doe affect the right disponed, whatever be the condition of the person who receiveth the right; and if they be dispon'd to a third person for an onerous cause, the reduction cannot be ef­fectual; and for obviating that prejudice, the Creditor may inhibite. The true rea­son then for sustaining Reductions at the in­stance of Creditors in diem, or sub condi­tione, is, that though personal actions for payment, are not competent to such Cre­ditors before the day, or the condition ex­ist, yet they may obtain Declarator, that notwithstanding of such fraudulent rights, their Bonds shall be effectual to them, and their Debitors Estates liable to them, and to execution at their instance, as if those [Page 35] Rights were not granted, and upon the matter, Reductions are nothing els but Declarators to the effect foresaid. 4. By the common Law, such as were Creditors ex delicto, had this remedy, which though some Lawyers have contradicted, yet it is most clear in my opinion; l. 12. ff. de verb. sig. sed et si ex delicto debeatur, mihi vide­tur posse creditor is loco accipi: for though he only is a Creditor, whose faith we have followed, l. 1. ff. si certum petat: and that the party injured cannot be said to have followed the faith of the injurer, yet that Law expresses only one quality of a Credi­tor; and there are many Creditors whose faith we have not followed. And yet I have seen this debated in our Law, Febru­ary 1674. Lindsay contra Gray of Haystoun▪ in which persuit a Reduction was raised by Lindsay against Haystoun, of a Disposition made to Haystoun by him who had murder­ed her Husband, after the murder com­mitted, to the prejudice of the assythment due to her, and thereafter decerned to her by the Exchequer: from which Reducti­on the Lords assoilzied, because Haystoun was not obliged in Law to know of the [Page 36] murder, nor did any Register put him in mala side, and singular Successors are only obliged to seek the Registers; and she having only the gift of the murderers es­cheet (he being denounced in absence) for satisfaction of the assythment due to her; the Lords found she might pursue Declaratours of Escheet, but could not pursue real Actions.

And generally with us in Scotland, he who commits a crime, is either only de­nounced fugitive, and in that case, his Escheet only falls, or he gets a remission, and then there is an assythment due, but in neither of these cases Reductions upon this Statute are sustained, or else the mur­derer dies, and then nothing is due even by way of assythment with us. But this first seems unreasonable, or at least severe, for if a person should commit a crime against me, and should thereaf­ter to defraud me of that assyth­ment, and just reparation that were due to me, dispon his estate to a conjunct or confident person; It seems very unjust that I should be disapointed of my just sa­tisfaction by this voluntar deed of his. [Page 37] And as this is not suitable to the principles of equity, and justice; so neither seems it suitable to the Principles of Law, for tan­tum facit quis delinquendo, quantum facit se obligando, and therefore as I could have reduced any such voluntar Alienation, if another had expresly oblidged himself to me, so ought I to have the same benefit when another l [...]s committed a cryme against me: And [...] we consider seriously the principles of either the Civil, or our Municipal Law; we will find; that not on­ly are Creditors ex dilicto looked upon as Creditors, but that they have [...]. or jus prelationis to all other Creditors, in swa far as concerns the necessary reparati­ons. And thus it is with us expresly de­clared by the 25. Act 14. Par. K. Ja. 2. and the 174. act 13. Par. Ja. 6. that all remissions, or respits granted to any per­son till the party skaithed be first satis­fied, shall be null. And by the 26. Act. 1 Par. Ch. 2. the party from whom goods are stollen, are to have reparation out of the first, and readiest of the thiefs goods And the last part, viz. that nothing is due by way of assythment where the guilty [Page 38] person suffers, seems unreasonable for the Heirs of the person injured being put to great expenses in the persuite oft times, and the wife, and children, being oft times beggar'd by the death of the person killed, it is unjust they should have no reparation; and the offenders death satisfies publick justice, but not them. And I love bette [...] the Law's of Spain and France, which al­low's reparation even where the offender dyes.

For the better understanding of the ge­neral point, how far the Fisk becomes a Creditor, by the common Law, upon the Commission of a cryme, and so may reduce posterior dispositions; It will be fit to de­stinguish these cases, first, before the cryme be committed, the Fisk has no interest to reduce any Disposition made by any per­son whatsoever, except the Commmitter had disponed his Estate, upon disigne to disapoint the Fisk when the cryme should be Committed; As for instrance, if a per­son who disigned to run in to the enemy, or to Kill the King, should immediatly be­fore dispon his Estate; I conceive that dis­position would be quarrelable, as done in [Page 39] fraudem fisci. If this animus comm [...]ttendi crimen, & fraudandi siscum, could be made appear, by these, or such like presumpti­ons, viz. If the disponer did immediatly before the committing of the cryme, and without any Onerous cause, grant the said Disposition, and made an Disposition omnium bonorum, for a particular Dis­position of any small part, though made immediatly before. and though gra­tuitous, could hardly be quarrelable ex hoc capite. 2. If the receiver of the Disposition was conscious to the disponers designe of committing the cryme, then if the cryme was treason, the receiver is guilty of the cryme; and so the Disposition, and all the receivers own Estate fals to the Fisk. And in these crymes a Disposition made to one who was conscious to the designe, makes the disposition quarrelable whether it be made for an onerous cause, or not, or whe­ther it be omnium bonorum, or not. 3. As to Dispositions made after the cryme is committed, we must distinguish thus, viz. either the cryme committed is treason, and all dispositions made after the perpetu­ating of this cryme are null, though before citation, or condemnation, but there must [Page 40] still ensue a sentence, which sentence is drawn back to the committing of the cryme. 4. In other crymes, Dispositions are either of Heretage, or Moveables; As to Heretage, no disposition is quarrelable, because no cryme confiscats Heritage, ex­cept treason. And yet quoad assythments to the party wronged, I think there is in reason (though our Law allows it not) so far jus qua­situm, to them, that they may quarrel all gra­tuitous Dispositions, though made before citation, as made to their prejudice▪ who became lawful Creditors by the injury suffered in the same cryme: but if the Disposition was for an onerous cause, I conceive it cannot be reduced ex hoc capite, or affected with the subsequent assyth­ment because the buyer was in bonafide to buy, finding nothing against him in the Register of Hornings, or Inhibitions. And that though he knew the Disponer had committed the cryme, because he was not oblidged thereby to know that he was in­capacitated in Law to dispon. 5. In other crymes, besides treason, Dispositions of Moveables are quarrelable by the Fisk, if if made after sentence, and it may be, if af­ter [Page 41] the party was cited for the crime, if the crime was such as did consiscate Move­ables. For though regulariter post com­missum crimen, valet alienatio ante sententi­am facta titulo oneroso neque revocatur nisi appareat contrahentium fraus. Angel. Ad. l. 1. Siquis C. de bon▪ proscript, yet there lies still a presumption, that all Dispositions made after an accusation are made me tu justae penae. Picus ad l. post con­tract. ibid. And all Lawyers are of opinion, that in neither of these cases, a delinquent may pay his former Creditors: And it is a received opinion amongst us, that all crimes which are capital do confiscate the commiters Moveables, though there be no Act appointing that confiscation, as a part of the punishment, because Move­ables, sequuntur personam▪ And thus in the case of Waugh in Selkirk; The Lords found his Moveables to fall under Escheet for theft, though there be no express Sta­tute confiscating the Moveables▪ for theft But though this be followed in some par­ticular Nations, as France Ultrad. Con­cil. 17. yet Clarus tels us, in Quest. 78. that de consuetudine totus mundus servat [Page 40] quod bona mobilia non confiscantur nisi exdis­positione statuti, vel consuetudinis, excepto crimine Heresis, & lese Majestatis. And particularly in theft, Bossius is clear, that the Moveables are not Escheet nisi vigore statuti. And why with us should it be de­clared by some Acts, that the committers life or goods shall be in the Kings will, and in others, that the committers Moveables shall be Escheet to the King, if this hold in all cases? 6. Where the committer is declared punishable by confiscation of his goods, and his goods are confiscated ipso jure, there even after the committing of the crime some think, that the commit­ter can dispon no part of his Moveables, even before denounciation or citation. That being the effect of confiscation ipso jure, as is clear by the above cited Do­ctors. And it would appear, that con­fiscation ipso jure, must import somewhat more then the confiscation that results on­ly consequentially from the nature of the deed it self. For else why needed the Law express this; and if the Law has con­fiscated them at the time when the crime was committed, it would appear that the [Page 43] dominium is thereby transferred to the Fisk, and that consequently the commit­ter is devested of them nam duo non possunt esse domini in solidum. And if the com­mitter be thereby devested of the proper­ty, he cannot dispon, for none can dis­pon but he who is proprietor. And yet even in that case the person injured, should have still action for his dammage, and interest, for he is mor prejudged by the crime, then the Fisk; and consequently it is not just that he should be excluded by the Fisk, since the Fisk has only intrest by him, and by the wrong which he has suffered. But I refer the reader to Peregrinus de jure fisci, who has treated this question most lern­edly.

5. This action is not only competent to the Creditor himself, but to the Cre­ditors Heir, for heres & defunctus sunt in jure una & eadem persona, and not only is it competent to the Creditors Heir, but in many cases, it is competent to his sin­gular successor, to whom either the right is asigned, or who becomes singular Suc­cessor, ratione rei, as Donators to Es­cheets, and forefaulters &c. as was found, March 1636. 6. The Defuncts [Page 44] Creditors are allowed to reduce Aliena­tions made to the prejudice of appear­and Heirs, upon death-bed, when these Heirs were their Debitors, for though this priviledge seems only introduced in favours of appearand Heirs, yet their Creditors may comprise from them omne jus quod in iis est, and so reduce, as hav­ing comprised, as was found at the in­stance of Balmerinochs Creditors contra the Lady Coupar, and the 4th. Janua­ry, 1672. Roxburgh contra Beatty. And in this case it was found that even Cre­ditors might pursue Declaratours and Re­ductions, upon this Act, though they had not yet Appris'd, albeit it was then al­ledged, that none has interest by our Law to pursue Reduction of a real right, except such as have a real right standing in their Person to the Lands, where­of they crave the right to be reduced. It is in some cases, not only competent to such as were Creditores before the alienati­on quarrelled was made, but even to such as were Creditores futuri, and became Creditors only after the alienation quar­relled was made. And the Civilians [Page 45] mention two cases wherein this action is competent even to such as were not Cre­ditors the time of the Disposition quar­relled: The first is, if the Disponer de­signed to borrow money before he made the fraudulent alienation, and did bor­row the money upon design to break with it, for there though the Reducer was not a true Creditor, the time of the alie­nation, yet the fraudulent inclination re­specting expresly this Creditor, or the borrowing of the money; made the disposition revocable and reduceable. Jason ad jnst. hoc tit. num. 6. but here the design must be expresly proven, or at least must be necessarily infer'd from convin­cing circumstances, and presumptions. The second case mentioned by them, is, if the Creditor did lend the money for paying prior Creditors; In which case, as they might have reduced the deed done in their prejudice, so may the posterior Creditors, since they come in place of the Creditors whom they payed; & sur­rogatum sapit naturam surrogati. But this last case does not (for ought I remember) take place in our Law, and seems not at [Page 46] all suitable to the Annalogy of our Law in other cases; for else he who had lent money to pay sums due upon an Inhibiti­on, would have right to the Inhibition, or he who lent money to pay off Com­prysings, or Arestments, without be­ing expresly asigned to either. And there­fore I conceive, that either the Creditor who payes the Creditors who were prior to the alienation, takes assignations to these prior debts which these pays, and then they may reduce deeds done to the prejudice of that first debt, or else he pays only the money to the Debitor, and the Debitor pays the prior Creditors, which is the case meaned by the Doctors here, and in this case I conceive, the Cre­ditor who so pays, would not have the pri­viledge, and that because the debt which only had the priviledge is extinguisht, & non entis nullae sunt qualitates, nor can the maxime surrogatum sapit naturam sur­rogati, take place here, seing that the debt in whose place it is surrogat, became extinct before the surrogation: and none of the parties could design to transmit this priviledge, else the payer had taken [Page 47] Assignation; nor can he complain since sibi imputet, who did not that which he might have done for securing himself. As to the first of these cases, there was a famous decision extending thir Reducti­ons even to posterior Creditors, 2. Ju­ly, 1673. at the instance of Street, and Jackson, English-men, against James Mason. The case whereof was this, James Mason having dispon'd his Lands to James Mason his son, the said Street, and Jack­son raised a Reduction of the sons right, as granted in prejudice of them, who were lawfull Creditors to him, by vertue of a Trade and correspondence which was begun long before the alienation; though the Bands wherein he became Debitor to them were of a date posterior to the alie­nation. To which it was answered, that the ground of the debt, being a bond, and the Bond being posteriour to the ali­enation, they were not Creditors the time of the alienation; and consequently the alienation was not reduceable upon this Act of Parliament 1621. To which it was replied, that this pursuit was not founded upon this Act 1621. only but [Page 48] upon the sure principles of the common Law, according to which the Lords use­ed to decide before this Statute was made, and according to which, they are warran­ted to proceed by this Statute in cases that are new. Though the Debt was not con­stitute till after the Infeftment was grant­ed, yet the pursuers having long before that time entred in a Trade with Mason, they did bona fide continue that Trade without any interruption, and under the collour of that Trade he had most fraudent­ly bought with their moneys this Land, and did most fraudulently convey the same to his Son to their prejudice: which did clearly inferr a designed fraud in the Fa­ther, and tended inevitably to ruine all Trade and Commerce which might be ve­ry easily disappointed by such fraudulent conveyances as this▪ Upon which debate the Lords ordained James Mason, the Fathers count-books to be produced, that it might appear in what condition he was at the time when he made that Disposition to his Son; And whether the same was granted upon designe to frustrate his Creditors, or not, like as they allow'd witnesses to be [Page 49] adduced for either party, for clearing the Lords how far the Trade was continued betwixt the Father and thir pursuers, be­fore, and after the Sons right; After making of which report, the cause being again called, it was urged for the pursuer, that by the report it was clear, that there was a former Trade, and correspondence betwixt them, prior to the Sons Infeft­ment, dureing all which time he oftimes sold cheaper then he bought; and that when he went to take the Infeftment for his Son, he disguised himself, and rode from, and to the Land, in a by-way, and caused so mark the Seasing in the Minut­book, that no man could know but that the Seasing was taken for the Father, and after the Seasing was taken, the Father still remained in actual possession. From all which it was argued, 1. That Mason elder having entered into a publick and un­terrupted Trade, and correspondence with the pursuers, the said Trade is to be consi­dered with respect to its first beginning, and the Bonds, though posteriour to the Infeftment, yet are to be drawn back ad suam causam, viz. the Trade and Com­merce [Page 50] from which they did result. 2. It was clear from the nature of Commerce in general, and from this report in particu­lar, that former payments were still made the foundation of new credite: And if the making of such Rights during the dependance of such a continued Trade were allowed in favours of Children; no Merchand would give trust, or if they gave, they might be ruined by it, both which would be equally destructive to Trade. 3. If we consider the Analogy of our Law, we will find, that the Lords have still considered a continued, and un­interrupted Trade as very priviledged in many cases; And therefore though other compts prescrive in three years, yet that Statute uses not to be extended to a conti­nued Trade, and correspondance, and so far have privilegia mercatorum, & com­mercii, been allowed in our Law, that Bills of Exchange are allowed, though wanting the ordinary, and Statutary so­lemnities of witnesses and warrands; for payment of Bills of Exchange are sustain­ed without the solemnity of intimati­on, against posterior Assignayes, and [Page 51] Arresters: and Annualrent is sustained betwixt Merchants, sine pacto, vel lege, and a Bill subscribed only by a mark, with­out either the subscryvers intire name, or the initial letters of it, was sustained, it being proven that the drawer of the Bill was in use so to subscribe. 4. By the com­mon Law, Actio Pauliana was extend­ed even to posterior Creditors, where ani­mus fraudandi, prior to the alienation did ap­pear, either by writ or presumptions, which are enumerate by Jason, ad inst. hic and are very far short of the presumptions for­merly condescended on: and if the com­mon Law, and natural reason allowed this remedy in the case of debts absolutely posterior; how much more ought it to be allowed in this case, where the debt, which is the ground of this pursuit, de­pended on a prior cause, and was the result and product of a correspondence entered into, before granting of the Sons Infeft­ment. 5. The Father had no Estate be­fore this correspondance, and having drawn fraudently into his hands the persuers goods, about the same time that he bought the Land, Law and Reason presumes that [Page 52] the price of their goods, did pay the price of thir Lands: And that therefore this Land ought to be affected and burdened with their debts. To which it was duplyed, 1. That though the common Law did al­low Actio Pauliana to posterior Creditors, yet that was only in the case where the receivers of such Rights were participes fraudis which cannot be alledged here, since the Son was minor nec doli capax, and that especially being introduced in odium of the collusion, it cannot be extended to cases, where no collusion can be alledged upon the receivers part. 2. Commerce and Trade is founded upon personal trust, and Merchants follow the faith of those with whom they trade, without ever con­sidering what real estate they have; so that thir pursuers cannot be said to have been cheated in their expectation, since they cannot be said to have furnished their goods, in contemplation of the real Estate now controverted. 3. Either thir pur­suers did search the Registers, or not; if they did not, sibi imputent, qui sibi non vigilarunt; and if they did, they would have found that the Son was Infeft, his In­feftment [Page 53] being Registrate, and though the Minut-book did not specifie, whether the Seasing was granted to Mason elder, or younger, yet they ought to have search­ed the Minut-book it self, whereof this is appointed to be but an Index, and the Son not having been particeps fraudis, could not have been prejudged by any cheat or con­trivance of his Father: for the jus quesitum to him by the Infeftment, sine facto suo ab eo auferri nequit. 4. The pursuers did innovat their accompts by taking Bond for the product, and Mason had a discharge of all former accompts, and trade: so that at the time of the Disposition, he was not their Debitor upon the accompt of any prior Trade; and the pursuers were no more to be considered as Merchants, but as com­mon Creditors: And it were a very dan­gerous consequence, to make debts that are innovated, retain all the priviledges that they had ante jnnovationem & perno­vationem prior obligatio perimitur. [...]. 1. ff. de Novationibus. 5. It can be made ap­pear, that Mason had other Trade, which would have furnished him the price of the Land, and that he was loser by the pursu­ers [Page 54] Trade. To which it was replyed, that the common Law did only consider parti­cipes fraudis, in order to another effect, viz. If the Alienation was ex causa onerosa, then the Alienation could not have been reduced; unless the receiver had been par­ticeps fraudis; but where it is ex causa mere lucrativa, as in this case fraus in eventu was sufficient. And even here the Disposition being made by the Father to his own Son who was in familia, the Son, was in as ill condition, as if he had been particeps fraudis: nor could he plead the same benefite as a stranger, contracting bonafide. Upon which debate, the Lords did reduce the Disposition, as being made to the Son, by the Father, who was a Merchant, during his publick Trade and correspondance. Which Disposition could have no other rational designe, but to cheat Creditors, the Father not having so much as reserved himself a liferent, or power to redeem. But since the Lords declar­ed that this decision proceeded upon all these grounds joyntly, it can hardly be extended to other cases. And I find that this publick interest, and advantage [Page 55] of Trade and Commerce, has been sus­tained to reduce deeds done to the preju­dice thereof: but yet not upon this Act, and Statute, but upon the general ground of fraud, infer'd by most pregnant quali­fications, as is clear by the decision be­twixt Pot and Pollock. 12. Feb. 1669. The case whereof was this▪ John Pol­lock being Creditor to his Wife of a second marriage, for her life-rent provision, and to others to whom he owed money, they apprised his Estate, and assigned their rights to Pot, who thereupon intents Re­duction of a Band granted by the defunct to James Pollock, his Son of the first marriage, for 5000. merks. The rea­sons of Reduction were, first, that this Band was granted by a Father to his own Son, without an onerous cause. To which it was answered, that they not be­ing Creditors when this Band was grant­ed, this Act of Parliament allowed them no Reduction of it, for this Act is only conceived in favours of prior Creditors, and since his Father might have gifted away his Estate to a stranger, and even that gift could not be quarreled by posterior [Page 56] Creditors, because they had not then interest, and so their interest could not be said to be prejudged, there was no speciality as to him, why he might not be capable of the same donation; And whereas it was alledged, that this would ruine Commerce, because a Father might grant such a right, and thereafter keep it latent, and cheat his Creditors with whom he Traded, who could not know the condition of the Defunct. To this it was answered, that the Act 1621. introduced no such speciality in fa­vours of Trade, but upon the contrair, such Dispositions, when made by Mer­chants, were lesse presumeable to be done in defraud of Creditors, then when made by such as had no Trade, nor Commerce, because Traders might grant Bands to their Children, in expectation of what they might gain, and when they [...]ell thereafter insolvendo, that might be im­puted to their losse by Sea, or Trade, and not to the donation in favours of chil­dren. Upon which debate, the Lords repelled the reason founded upon the Act 1621. The 2. reason was, that this [Page 57] Band was reduceable ex capite doli, as granted by collusion betwixt Father, and Son, in necem Creditorum, and to de­fraud their just interest: which dole, and fraud, was infer'd from these circum­stances, 1. That the Son being forisfa­miliat, and provided, it could not be granted for any onerus cause. 2. The Band was kept latent till the Father died. 3. It did bear no annualrent, and the term of payment was delayed till after the Fa­thers death. 4. Their debts were all contracted immediatly after the granting of this Band; so that it appeared clearly, that he had designed to exhaust his Estate by this Band in favours of his Son, and then to contract debt freely, and to ap­ply their money to the payment of this Band. Upon which qualifications of fraud, the Lords reduced the Band. The third reason was, that this Band granted by a Father to a Son, was but a legittim or portion natural, in the construction of Law, and therefore was revockable by the Fa­ther, and consequently by his Cre­ditors; and legittims did only affect the the Defuncts free Gear; which reason was [Page 58] also justly repelled, for this being a Band granted to a son, who was foris familiat, and being delivered to himself, was found not to be of the nature of a Legittim. First, because it did not bear to be in sa­tisfaction of his portion natural. And secondly, because it was an ordinary Band, and delivered in the ordinary way.

There was another case decided 4th Decemb. 1673, Wherein the Lords re­duced a Disposition granted by Reid of Daldilling to his Son, even at the instance of posterior Creditors, in respect that the Right was base, and that the Father con­tinued still in possession, and acted still as absolute Fiar, and that the Registers of that Shire were carried out of the countrey, so that they neither could, nor were obliedged to know the Sons Infeftment. And that, albeit it was alledged for the Son, that as fraud never ought to be pre­sumed, so there is no ground for presum­ing it here, since this infeftment ought to be imputed to another cause, then a design to defraud Creditors, viz. to a prior Contract of Marriage; wherein his [Page 59] Father having gotten a great portion with his Mother, was thereafter obliedged to Infeft him in his Lands, and this being the ordinary way taken to secure ancient Families against prodigal Sons: And it being the ordinary remedy taken by pro­vident men, when they give great por­tions with their Daughters▪ It were very dangerous to reduce such Dispositions at the instance of posterior Creditors▪ in whose favours nothing was provided, by the Act of Parliament, and the Sons Infeft­ment being registrat, did likewise take off all presumption of fraud. And though the Registers were taken away, that could not prejudge the Defender, or be a ground of Reduction here, no more, then it could defend him against a Reduction ex ca­pite inhibitionis, or interdictionis, for the user doing omne quod in se est, and following the faith of publick Registers, cannot be prejudged by an accident, to which he had no accession. And there was as good reason for reducing interdicti­ons at the instance of posterior Creditors, as for reducing such base Infeftments: the not allowing of which would still force [Page 60] Sons thereafter to be at the great ex­pence and trouble of publick Infeftments, and even these publick Infeftments, were lyable to the same reason of Reduction, since lawful Creditors were in both cases prejudged; and a Son preferred to them. And though equity should be considered, where there is no Law; yet where there is an expresse statute, in which many cases are considered, casus omissus, ha­betur pro omisso. It was here observeable, that the Contract of Marriage did not bind the Father to Infeft the Son in these Lands, but that hereby the Estate was only provided to the Heirs of Marriage, so that the Son behoved to have been served Heir, and so would have been lyable to the Fathers debt, if this new Infeftment which was here quarrelled, had not inter­veened.

Not only deeds done to the prejudice of prior Creditors are reduceable, but even deeds done dolose to the prejudice of such as became Creditors, at the same time with the deed done, are reduceable. As for instance, one brother grants a Band to another, upon designe to let the friends [Page 61] of her whom he is suiting in Marriage, see that he has an Estate, and immediately after the Contract, or about that same time, grants a Discharge to his brother, having engaged the womans friends to give him a gerat Tocher in contemplation of that fallacious Band: this Discharge is reduceable, as given fraudulently to the prejudice of the woman who gave the Tocher. And who is Creditrix by that Contract, without respect to priority or posteriority of the debt. As was found in the case Henderson against Henderson; and Donald Foller being provided by his Fa­ther, in his Contract of Marriage; to the Conjunct [...]ee with his Wife, of a Tene­ment of Land, the Fee whereof was pro­vided to the children of the Marriage, and the Father having fraudulently taken a tack from the Son at the same time; the Lords reduced the said tack, as done in defraud of the said Contract, & contra fidem tabularum nuptialium. And if this had been otherwise decided, all poor wo­men might easily be cheated, and Con­tracts of Marriage, which are the obliga­tions most priviledged by Law, would [Page 62] become ineffectual and might easily be evacuated: And so favourable are such obligations in Contracts of Marriage, that Glencorsse having provided his Sons by se­veral Bands of Provision, and having thereafter dispon'd his Estate to his Son in his Contract of Marriage, the Son having got a good Tocher in contemplation of this Estate; the Lords did find, that the Sons Fee could not be reduceable by, not affected with those Provisions, since they were but latent Rights, which neither the Son, nor they who contracted with him were obliged to know.

The presumptions from which Lawyers conclude a designe of cheating future Cre­ditors, are those. 1. If the Debitor dispone all his Estate, assignatio omnium bonorum, especially if he reserve not his own Liferent, as in Masons case, for it is pre­sumed, that no man would denude himself of all means of subssistance without some malicious designe, and if the Disposition be made without an onerous cause, l. omnes §. Lucius ss. de his quae in fraud: or for a lesse price, then the thing dispon'd was truly worth, Strach. tract. de decoct. part. 3. [Page 63] num. 2. but since licet contrahentibus in emp­tione vel venditione seinvicem decipere. It seems that this extention should not hold, except where the thing dispon'd is much under-rated. 2. If the Disponer be Bank­rupt, or a Cheat. or deploratae vitae. Strach. num. 23. 3. If he borrowed immediately after the Disposition. 4. If he borrowed secretly, and desired to conceal his con­dition, as in Masons case. And 14. Decem. 1671. Duff contra Culloddin this qualifi­cation of fraud, was sustained to reduce an Assignation made by one brother to ano­ther, viz. That the resigner desired the Resignation should be kept secret, and thereafter suffered his brother to continue in possession. 5 If he borrowed summs far above his fortune: and upon this last pre­sumption, a Merchant in Paris was exe­cuted, having borrowed vast summs, with which he broke next morning after they were borrowed.

To any conjunct or confident Person.

THe reason why the Act suspects such, and is more unfavourable in the case of Dispositions, and Rights made to conjunct or confident per­sons; is, because these have easier occasi­ons of making, and are more pron to make such Rights then any else. For what strangers would cheat Creditors for one another; and though a Debitor will be desirous to prefer his Creditors to Stran­gers; yet he will be ready to prefer his Friends to his Creditors. Which reason seems to be insinuate by that excellent Law, l. 27. C. de donat. Data jam pridem lege constituimus, ut donationes interveniente actorum testificatione conficiantur, quod vel maxime inter necessarias, conjunct as (que) personas convenit custodiri. Si quidem clan­destinis ac domesticis fraudibus, facile quid­vis pro negotii opportunitate confingi potest, vel id quod vere gestum est aboleri. And [Page 65] the Doctors have received as a brocard, that conjunctus presumitur scire facta con­juncti, l. octavi: ff. unde cognati: and therefore presumitur alienatio in fraudem facta, quando facta est donatio omnium bo­norum vel conjuncta personae, Bart. ad l. post contractum, h. t. num. 30. Our Law has not fully determined who are re­pute conjunct persons, since this opens a door to arbitraryness in Judges, it had been fit the Law had obviated by a special de­finition, quo ad this Poynt the power of Judges, as well as the fraudulent convey­ances of Creditors. But certainly Father and Son, and all degrees ascendant and descendant, are repute conjunct. And because these are the most near relations, therefore Dispositions made to them, are not only reduceable by this Statute; but such Dispositions, when made to such as might have been Heirs, make the receiv­er successor titulo luc rativo post contractum debitum. Which passive title was not ex­tended against a Brother, though the Dis­poner was so old that he could not expect Succession whereby his Brother might be excluded, nor was the presumtion of fraud [Page 66] so strong amongst collaterals, as to infer so odius a passive Title, but reserved Acti­on upon this Act, 1621. in so far as the cause was not onerous, 7. Decemb. 1672. Spencer-field contra Kilbrakmont. 2. Bro­ther and Brother are repute conjunct Per­sons. But whither this should be extend­ed to the same degrees in affinity, as in con­sanguinity, has often been contraverted; and it is certain, that in other Statutes, non idem est jus affinitatis, ac consangui­nitatis; And thus the Statute forbidding Father, Son, or Brother, to judge in Acti­ons of their correlati, is not extended so as to prohibite Fathers, Brothers, or Sons in Law, to judge in such cases; as was found in Mores case against Gruibbit. But yet a Sister in Law was found to be a con­junct person, 5. July 1673. Hoom con­tra Smith. And a Brother in Law was re­pute a conjunct Person in the Reduction against Major Biggar, at Waughaps in­stance. And S [...]eidivin hoc tit, pag. 1209. tells us, that inter affines & conjunctas personas fraudes presumuntur. And since men will do as much for their Allies, as for their blood Friends, especially for Sisters, [Page 67] or Brothers in Law; and that the Law upon that same reason repells them from being witnesses: It seems most reasonable that they should be repute conjunct Persons. And it is not imaginable why the Law, which is jealous that an allye or affinis may perjure themselves for ano­ther, should not be much rather unwilling to assist them in such conveyances as thir, to the prejudice of their Creditors, where the cheat is easier, and less dan­gerous.

But whether a Bastard be such a conjunct Person, as that a Disposition made to him by his Father is Reduceable; may be doubted: for upon the one part, a Ba­stard patrem demonstrare nequit, and he who is of no blood, cannot be conjunct upon the account of Blood: And yet upon the other part, a Bastard is known to have much natural affection, and so may be presumed a person-willing to con­veigh such frauds: and upon this ac­compt, the Law rejects him from being witness in favours of his natural Father, Marsil. singul. 273. And a Bastard with us is only received cum nota. And the [Page 68] Law hath allowed him action against his Fa­ther for aliment. And though the Law will allow him no advantage by his birth; yet it should not capacitate him to cheat others: and I think this distinction more reason­able then to say with Paleot: that Bastards are not conjunct upon the Father side, but on the Mother side. cap. 60. de not his, or to say with Alex. consil. 60. that these are to be accounted conjunct, in so far as concerns marriage only, so that a Bastard Brother cannot marry his Bastard Sister; for certainly, though these be not conjunct in strict Law, sunt con­junctis similes felin. ad cap. per tuas de probat.

Who is understood to be a confident, seems more difficult, and it would seem that an ordinary Factor, or a domestick Servant must be said to be confident Per­sons, and an ordinary Agent was found to be such a confident Person, 26. June 1672. Moubra against Spence, and Immola ad h. t. leg. post contractum affirms that A­micus, magna amicitia conjunctus, is ly­able to this presumption, and the Law judges still of him as of conjunctus sanguine, [Page 69] and friendship is oftimes warmer then blood.

Dispositions likewise omnium bonorum, are reduceable, though not made to confident Persons, but to a meer stranger: except the Disposition be made for an onerous cause, for the Law presumes as I observed formerly, that it is made to prejudge Creditors; and it were unreasonable that a meer gift should be preferred to poor Creditors, this was found the 18. November 1669. Hender­son contra Henderson. Albeit it was there alleged, that this Act declares such deeds only reduceable, as are made in fa­vours of conjunct or confident Persons, for though this Statute make that a presump­tion of fraud, yet it excludes not other presumptions, such as were in this c [...], viz. that it was assignatio omnium bono­rum, and that it bears to be granted for a cause falsly narrated, viz. for the summ of two thousand merks, due by Howat the common Debitor to Anderson; where­as it was offered to be proven by Discharg­es under Howats own hand, that the far [Page 70] greatest part of this sum was payed before the Disposition.

Since this clause of the Statute annuls deeds only done to the prejudice of confi­dent or conjunct persons, it would seem, that such Rights when made to others who are not conjunct, nor confi­dent, are not reduceable. And yet de praxi, all Rights made to any persons whatsoever, without an onerous or ne­cessary cause, are reduceable by this Statute, and our Law considers the dif­ference betwixt conjunct, or confident persons, and others; only in reference to the way of Probation, so that these must prove an onerous cause whereas others need not; this shews how misteriously our Statutes are conceived.

Without true just and necessary causes, &c.

TItulus onerosus, is when any thing is dispon'd with the burden of doing or paying somewhat, titulus lucrativus, is when the deed is meerly gratuitus, and proceeds from meer favour.

The Civil Law observed two Rules, in the difference betwixt an onerous, and lucrative cause, quoad this Action. The first was, that this Action was competent, even against these who had received such Rights for onerous causes, when both the giver and receiver were guilty of fraud, if they were partakers of the fraud, l. ait. praetor ff. h. t. And in that case the thing alienated was recalled without restor­ing the price. The second Rule was, that he who had received such a Right, ex causa lucrativa, was lyable to restore▪ though he was not accessory to the fraudu­lent conveyance. nec particeps l. quod autem §. ij. ff. eod.

[Page 72]Our Law likewise considers two cases, one is, if the Creditor had done no dili­gence; and then Rights made to their prejudice are only reduceable, if they be made to confident persons without an onerous cause: The other if the Reducer has as a Creditor done diligence, and [...]hen the Rights done to his prejudice are reduceable, whether they be made ex ti­tulo oneroso, or lucrativo. For by the last part of the Act, it is declared that the Debitor cannot prefer one Creditor to another, to the prejudice of any such diligences.

How far children are Creditors to their Father, and may upon this Statute re­duce deeds done by their Father in favours of other children after their Provisions, may be dubious in many cases▪ of which I shall only name a very few. The first is, a Father by his Contract of Marriage with the first Wife, provides the children of the first Marriage to ten thousand Pounds, and by the Contract with a second Wife, provides them to twenty thousand Merks, and by a Contract with a third Wife pro­vides the children of that Marriage to ten [Page 73] thousand Merks. The question rises, whe­ther the children of the first Marriage can reduce the Contract of the second Mar­riage, quoad the Provisions therein made: as made in prejudice of them who be­came lawful Credtors by the first Con­tract; or if the children of the second Marriage, may not do the same to the children of the third Marriage: and I conceive that if the Provisions be made to the Heirs of the Marriage, and if they enter Heirs, they cannot reduce, because tenentur prestare. But if the Contract bear children of the Marriage, some think that they may assigne their Portions, and the assignay may reduce these Provisions made in the second Marriage. And just so the children of the second Marriage, may reduce the Provisions made to the chil­dren of the third Marriage: But I think, that either the children of the first Mar­riage are Infeft, and then certainly, the Father cannot prejudge them by posteri­or personal Provisions, or else where nei­ther are Infeft, I conceive, that if there be an onerous cause, such as a Tocher payed by the Contracts of the second, or third [Page 74] Marriages, and then also the Contracts cannot be reduced upon this Statute: For these Contracts are not made to defraud Creditors, since they are made for an onerous cause. Yea though there be no Tocher, yet even the Marriage is an onerous cause; for who would marry if there were no Provision, and the de­signe here, was not to prejudge true Cre­ditors.

The other case is, a man in his first Contract provides his Land, and ten thou­sand Merks to the Heir of the first Mar­riage, and in the Contract with his se­cond Wife, he provides the children of that Marriage, to the conquest that shall be made during that Marriage. The question is, whether the Son of the first Marriage will be Creditor to the Father for ten thousand Merks, even though he be served Heir to his Father: For though here it seems, that confusione tollitur ob­ligatio, the son of the first Marriage being both Debitor and Creditor. Yet con­quest is still understood to be, illud quod super est deducto are alieno: and therefore the children of the second Marriage, can [Page 75] have no Right but with the burden of these ten thousand Merks. And in the case of Scot of Bavila contra Binning. The Lords found that the Heir might reduce the Provisions made to the Wife, and Bairns, of the second Marriage, in so far as concerned, the ten thousand Merks pro­vided to the Heir of the first Marriage: but this may be doubted; for first it may be alledged that there was no debt, since the Pursuer was the Debitor him­self. But secondly if the money with which the Land was bought, was conquest also in the second Wifes time, it seems against Law and Reason, that this should not be called conquest quoad an Heir of another Marriage, cui nihil deest, though if the money had been conquest in the first Marriage, it might be more properly cal­led Aes alienum.

A third case is this, a Father obliedged himself in his Contract of Marriage, with his first Wife, to provide the Bairns of the Marriage, to eight thousand Pounds: but before his death he provides one of the three Bairns to the whole eighth. The The question propon'd was, whether the [Page 76] other two Daughters might raise a Re­duction of the Disposition made to their sister upon this Act, and for these sisters it might be urged, that the brother be­came Debitor to them prorata, even as if he had granted Band to six men for a summe, each of them would had Right to a proportional part of it; at least, that each Child became Credi­tor to him, and so something was due to each of them. And consequently he defrauded them by his disponing all to to any one: but for the other sister, to whom the Disposition was made, it might be alledged; that the Father was Debitor only to the Bairns of that Mar­riage, tanquam stirpi, and so he satisfi­ed his obligation by disponing his Lands worth that summ to any one of them, but was not Debitor to them in capita. 2. The designe of the parties Contracters, in such cases, is only to secure the summ to the Issue of that Marriage, without con­sideration of any division; for this Provi­sion is made to secure against Children of other Marriages; but not to secure one Child against another, and there may be [Page 77] some reason to be jealous of the Father in the one case, but not in the other. 3. This restriction were contrair to the Fa­thers patria potestas, and the Law is never jealous of the Fathers affection, but presumes that his division will be just, and what Judge should be juster to Chil­dren then a Father. 4. It were against the interest of the Commonwealth to re­strain, or take away the Fathers power, of Distribution in such cases, which is the great curb, that the Father has upon his Children, for making them good Chil­dren, or good Citizens, and were it not against reason, that if the two sisters had been very Vitious, and the third most Virtuous, that the Father should have been so bound up, that he could not gra­tifie the one, or that he behoved to pro­vide the other with Money to serve their lusts. 5. It is ordinar to provide expres­ly, that the Money so provided to the Children should be divided as the Father pleased, and the Law uses to decide ge­neral cases according to what is ordinarily pactioned, presuming that to be the tacit will of the parties, which is ordinarily the [Page 78] express will of other parties. Likeas if it had been contraverted amongst the par­ties at the time when the Contract was to be subscribed, who should have had the Power of division? certain­ly, it had been allowed to the Father. To which last I incline, except it could be alledged that all were equally deserv­ing, and that the Father, or Children preferr'd, had used indirect means in pre­ferring one to the rest. For though there be no Testament quarela testamenti in officio si—with us, yet there may be some place perhaps, for the Judge to interpose in such cases. I find by the opinion of the Doctors, a Father Disponing to one Child a necessary Portion, is not said to defraud the rest of the Children, to whom he Disponed formerly, nam hoc potius tribuendum pietati quam fraudi. And it is clear, that for this reason, Libertus in fraudem patroni, filie dotem constituere po­terat l. 1. §. sed si ff. si quid in fraud. pa­tro, but it is not so with us in all cases, as has been formerly observed.

It has been likewise debated, whether provisions by Parents to their Children, [Page 79] in their Contract of Marriage, be such onerous causes as may defend the Chil­dren against Reductions upon this Act, at the instance of Creditors, who crave Dispositions made to them in satisfaction of these obligations to be reduced. For upon the one part, it seems, that since they are Creditors who may pursue, and distress their Father, therefore their Fa­ther may dispone his Estate, and this is both a necessar and a prior Debt, and so falls not under the Act; which declares only such Rights reduceable, as are grant­ed without true, just, and necessary caus­es. And Provisions of Children by Con­tracts of Marriage are the ordinary allow­able remedies granted to such as paying Tochers with their Daughters, or provid­ing their Sons, desire to see their Grand Children thus secured. But upon the o­ther hand, it seems very hard, that such latent deeds as Contracts of Marriage, which Creditors cannot know, should be su­stained as onerous Causes to seclude them; and that the Debitors own Children should be preferred to Creditors. And as there can be no debate as to this point, [Page 80] where the Provisions are made in favours of the Heirs of the Marriage, because there the Heirs must represent the granter, and so cannot reduce his deed, so where the Provision is made to Bairns of the Marri­age, yet Creditors were preferred to them in the case of Bannerman of Elsick contra Haystoun. But upon the 3. July 1673. in an Action, Gordon contra Fraser: The Lords found, that a right to Moveables made by the Father to his Children, was reduceable at the instance of Posterior Cre­ditors; though it was made in satisfacti­on of the Mothers Contract of Marriage, except the Children would alledge that the Father was not Bankrupt, but had an suf­ficient Estate to pay the pursuers; for they thought it much more reason­able, that the Children should loose by their Father, then the Credi­tors.

It has been contraverted, whether a Right made by a Father to his Son in law for a Tocher, be reduceable by an anteri­or Creditor, and if this be allowed in all cases, men may easily prefer their Chil­dren to their Creditors; and it would ap­pear, [Page 81] that at least the Right so made, should only be esteemed onerous in quan­tum, it extends to such a value, as may be a suitable Tocher, for such a mans Daughter, or else it should be repute one­rous, in so far as may answer to the Joyn­tur given by the Husband, or to the ali­ment that he is oblieged to bestow upon her stante matrimonio, though he be by Con­tract oblieged to no Joyntur, nor hath any Joyntur to give her, et it a dos, est titulus onerosus, ex parte mariti, qui [...] datur pro oneribus matrimonii, sustinendis l. pro. oneribus C. de jur. dot. sed ex parte uxoris dos, est titulus lucrativus. l. qu [...] liberos ff. de ritu nuptiar. l. sin. C. de doti [...] [...]. Basilic. l. 25. S. 1. hoc tit. And upon the other hand, a Joyntur to the Wife is titulus onerosus, in swa far as it is suitable to the Husbands Estate, as was found Novemb. 1665. contra Rus­sel. But if the Husband should Dispone all his opulent Estate to his Wife, as a Joyntur, I think it might be reduced to a third, at the instance of prior Credi­tors, both because a Tierce is the Provi­sion, that the Law allows a Wife if there [Page 82] be no provision; and so is the legal quota. And because Rights made by a man upon Death bed, to the prejudice of his Heir, is restricted to a Tierce; but if the Contract bear [...], the Land to be Disponed to the Son in Law for love and favour, that na­rative proves titulum lucra tivum, though really no other Tocher was bestowed; and though a Joynter was given, as was found betwixt Graham and Stew­art.

How far a Wife is Creditrix by her Contract of Marriage, and may reduce Posterior deeds as done in defraud of it, is debateable in many cases, as to Heretage▪ but these fall not properly under this Act, but under the Act 105. Par. 7. Ja. 5. And as to the Husbands Moveables, I shall only mention one case, viz. Campbel contra Campbel, Decemb. 1674▪ which was this; Campbel by his Contract of Marriage, pro­vided his Wife to the half of the Move­ables, that should pertain to him at his Death, and a little before his Death, he Disponed many of his Moveables to his Brother; whereupon the Relict raises a Re­duction of that Disposition upon this Sta­tute. [Page 83] To which reason of Reduction, it wa [...] answered, that the reason was not relevant for the Relict was only Creditrix by this Contract, as to what Moveables should belong to the Husband at his Death, which was but [...], & spes succes­sionis, but did not hinder the Brother to Dispon at any time, in his liedge poustie, upon any part of his Moveables. And as such Clauses providing a Wife to the third of the Moveables, were most ordinar, so if this were sustained, the Husband could not gift to his Brother, or Relations, any Horse, or any thing else. To which it was replyed, that if such Dispositions were sustained, the former, or the like Clauses would be Elusory, and might easily be Evacuated; for a Husband might Dis­pon a little before his Death all his Move­ables: this was not decyded. But the Lords inclined only to sustain this Dispo­sition, if made for some probable Cause: but if it had been made upon Death-bed, it was Reduceable, or if there had been great presumptions of fraud adduced to clear, that it was contrived as a meer cheat against the Relict. But were clear, that [Page 84] if the Donation, was only of one particu­lar thing made in leidge poustie, it could not be quarrelled upon this Act. It may be doubted, if when the onerous Cause exprest, is not true, or if there be no one­rous Cause, but that the Right granted, bear expresly, to be for love and favour. If in either of these cases, it be not lawful to the granter to astruct his Disposition, when quarrelled upon this Statute, by offe­ring to prove, true and real onerous Caus­es, prior to the Debts whereupon the Re­duction is founded. And first, it is with­out all doubt, that if the Right bear no Cause, the user may condescend upon, and offer to prove the true and onerous Cause. 2. I find it decided, that where the writ did bear only love, and favour, though granted by a Man to his own Wife; she was allowed to astruct it, by founding it upon her Contract of Marri­age, and ascribing it to make up the de­fects of the Lands, provided to her by her said Contract. January 1669. La. Brae, con­tra Chisholm. 3. Where the Disposition did bear love and favour, and other onerous Causes: Either the receiver of the Dis­position [Page 85] was admitted to astruct the Dis­position, by proving an onerous Cause adequat to the worth of the Land. In the case Naper contra Ardmore; which Decision may be debated, for why was love and favour insert, if the Cause was adequat, and this was a great presumption of the fraud, especially in a Disposition by the Father to the Son, for though, utile per inutile non vitiatur. And that this might have proceeded ex stilo, yet in suspect cases, where it is known that narratives are much considered, these Arguments are but weak.

4. Where the writ bears an onerous Cause, and that the Cause can only not be proven. Then it seems reasonable that the person to whom it was granted, may astruct his right, by offering to prove that there were othere summs justly resting to him. 5. If the Disposition bear an one­rous Cause; but if it be proven expresly, that the Cause exprest is not true, but is caluminously, and fictitiously exprest: I would conclude, that the user should not be allowed to astruct another true Cause, and that in odium falsi, & calumniae: even as if the date of an execution, or other dili­gence, [Page 86] be found to be false; the user is not allowed to astruct the same, by conde­scending upon another true date, and abid­ing at it.

Without true and Compe­tent.

THe Doctors also condescendes up­on a third kind of Title, different from both a lucrative, and an one rous Title; and this they call a mixt Title, titulum mixtum, l. apud Celsumꝰ. authoris ff. de except doli. vid. Jason ad l. nemo potest ff. legat: and an instance of this is given in an Alienation made in defraud of Creditors, for lesse then the true price. And even in this case, Reduction is competent for the Creditor, prejudged, in so far as the price re­ceived is below the true value; and thus, l. 7. Basil. h. t. [...], si in fraudem Credito­rum meorum, minore praetio fundum ven­didero, [Page 87] revocatur quod gestum est, etiam non reddito praetio, but since, licet contra­hentibus in emptione & venditione se in­vicem decipere, and that we see prices of Land very different, every man tak­ing his advantage. It may seem strange, why the Law should prejudge so far the Buyer in this: and I conceive, that except the price be palpably made so low, upon design to cheat Creditors, (any of the Creditors having offered more) or that it is extraordinary low in it self; such prices cannot be challenged. As if a chal­der of Victual, worth truly 3000. Merks, were sold for 2000. Merks: But yet I think not that it behoved to be ultra di­midium, below the just half; for then it might have been reduced by the Civil Law upon another head, and so this Acti­on had been unnecessar.

Whether if any Debitor buy a hazard (jactum retis, as Lawyers call it) v. g. if he buy a womans Liferent at seven years purchass, and dispone his Land for the price: if he die the next year, may not I reduce that Disposition, as done to the prejudice of me a lawful Creditor; even [Page 88] as a Minor might reduce such a bargain, if made by his Tutors. To which I con­ceive it may be answered, that it cannot be quarrelled, if it was made in the ordinary way, and for the ordinary ad­vantage, for which a man would have transacted it, if he had no Creditors, and if no design to defraud, can be shown: and here that maxime holds, fraus & eventum, & consilium requirit: nor are the Leidges put in mala fide to Contract with Debitors in such cases.

Without just.

IT is not sufficient, that the price or cause be onerous, but it must be just; that is to say, a price which the Law allowes; as for instance, if a man should loose a great summ at Game, and for pay­ment of it, should dispone his Lands, that Disposition might be quarrelled as made without a just price, because the Law al­lowes not the payment of what is gained at Game, if it exceed 100. Pounds Scots. [Page 89] And since the Law would not sustain Action for it, at the gainers instance against the Debitor who loosed it, much lesse should it sustain a Disposition for pay­ment of it against the Creditors, and yet this may be said to be an onerous cause; for the looser hazarded as much of his own, against what he gained, and so this Game was but the return of his Money: and like to emptio jactus retis. And though it may be alledged, that by the 13. Act, 23. Pa. Ja. 6. The superplus of what is gained at Game above 100. Pound, be ordained to be con­signed for the poor of the Parish. And so the Disposition made for payment of it, must accresse to them; and is still an onerous and necessar debt, quoad the looser, and con­sequently is not reduceable at the instance of his Creditors; yet I conceive that such a Disposition would be reduceable at their instance, as not made for a just cause, since it is made for a cause, upon which the Law would not allow Action. And the Civi­lians number, what is gained at Game, amongst lucrative causes, Bald. adl. i. C. si quid in fraud Patron. And generally what is acquired unlawfully, is by them said to [Page 90] be acquired, titulo lucrativo, Jason hic num. 8. and thus Dispositions granted ob turpem causam, &c. may be said to be reduceable also upon this Statute, as granted without an just and onerous cause: according to them; as it is granted without a just cause, to speak in the termes of this Act. And I think, we speak more properly then the Civilians here, for what is gained at Game, rather wants a just cause, then an onerous cause.

And necessary causes.

DIspositions made to conjunct or confident persons may be quar­relled, though they be made for an just and onerous cause; if they be not made for an necessar cause. For it may be fraudulent, and be designed to prejudice Creditors, except the cause be necessary, though it be onerous. As for instance, if a conjnuct, or confident person, know­ing that his Debitor intends to frustrat his Creditors, and to go out of the Countrey, [Page 91] and yet presuming that a Right granted for an onerous cause cannot be quarrelled, should so far comply with his fraudulent design, as to buy Land from him, and to pay him the price upon that design, such a transaction may appear to be fraudulent, and lyable to be questioned upon thus Act; and these words of it, without true just and necessary causes.

To have been from the begin­ning; and to be in all time coming, null, and of none a­vaile, force, strength, or effect; by way of action, exception, or or reply, without any further Declarator.

BY this Paragraph of the Statute, the nullity arising from this Statute, is reduceable by way of exception, as well as action, ope exceptionis, as our [Page 92] Practick terms it: and this was introduced in favours of the Pursuer, who is leised by the fraud [...], whose advantage it is to have his interest sustained to him any way, and so to have his diligence thus shortned.

For the clearer understanding of these words, we must consider, that by the com­mon Law, nullities are either such as are received ipso jure, or ope exceptionis. That is said to be null, ipso jure, where the thing is declared null by any expresse Law, as this is by this Statute, quod contra legem fit, pro infecto habetur, & ipso jure nul­lum est. l. non dubium C. de legib: that was nullum ope exceptionis, which was not receiveable, except the nullity had been proponed, by him to whom it was com­petent. But in our Law nullum ipso jure, & nullum ope exceptionis, are the same, & termini convertibiles: and with us the opposition is betwixt nullum ope exceptio­nis, & actionis; the reason of which dif­ference proceeds from the favour designed by the Law, quoad the form of procedure. For if any thing be null by way of excep­tion, it is received summarly against the [Page 93] pursuite, without raising an Action of Reduction, or Declarator: but what is only null by way of Action, needs Process of Reduction, or Declarator. By the common Law, either a Penalty was not adjected to the prohibitory Law, but the thing was simpliciter prohibited, and these things were ipso jure null. But if the Law proceeded further, and adjected a Penalty; then either the Penalty was adjected to the annulling of the deed: and then the deed whereby the Law was contraveened, and the Penalty, was both due, or else the deed was declared null, but so that it was some way allowed to subsist, but a reme­dy was appointed, and then it was not null ipso jure, but was reduceable by the way appointed; according to the princi­ples of the common Law, this nullity was receiveable ipso jure, for quod contra legem fit, id ipso jure nullum est. But so it is that this alienation in defraud of Credi­rors, was declared null by the Law, and by this Statute being declared null, that nullity should be receivable ope exceptionis. and yet by our practice the nullity arising from this Act, is oft-times received only by [Page 94] way of Reduction, whereby the Lords have receded from the expresse words of the Law; and the only reason I can give for for it, is, that the Author or Disponer must be called to maintain his Right; which could not be if the nullity were receive­able ope exceptionis: and if the Disponer were called, he might eleid the the pur­suite, by alledging that the Debt, to the prejudice of which his Right was said to be granted, was payed, or discharged, or became extinct by compensation; neither of which could be known to the receiver. And yet I find in some cases, this nullity receivable, ope exceptiouis, v. g. If the right bear, to be for love and favour; for here there needs no Probation that it is frau­dulent, and it is a principle, that where the nullity is founded upon Law, and the subsumption is instantly verified, that [...]o casu the nullity is receiveable ope excep­tionis. And in my humble opinion, where ever the fraud can be instantly verified, it ought to be received, ope exceptionis, and the former and ordinary reason, viz. That the Disponer should be called, because he may alledge the debt to be payed, seems [Page 95] not to be good, because that nullity is not competent to be propon'd by way of ex­ception, but where there is a com­petition betwixt the Creditor, and con­fident Persons, both pretending right to the Lands and others Dispon'd, which cannot be but where the Creditor has com­prised; and though before comprysing, the Creditor ought to cite the Disponer in his Reduction, which is processus executivus, and previous to, and in order to executi­on by comprysing: yet after ultimat exe­ecution by comprysing, it is not necessar the Debitor should be cited upon that pre­tence, that he may question the Debt as satisfied. 2. I find that Dispositions of Moveables, have been found null by way exception, though nullities of Heretable Rights are not found null, without Re­duction or Declarator, and thus it was de­cyded, 16. June, 1671. Bower contra the Lady Coupar: The reason of which distin­ction must proceed from this, viz. that mobilium vilis est possessio, [...] as the Greek calls it, and therefore the Law requires not so much solemnity to their [Page 96] constitution, nor destitution, or revoca­tion. 3. I find, that where the Right quarreled, is parvi momenti, the Lords ad­mit the nullity to be receiveable, ope ex­ceptionis, 5 January, 1669. But here the parties were poor, which I find they do also in nullities ex capite inhibitionis &c. in small matters, and betwixt poor parties, nam de minimis non curat lex, & demini­mis summarie jus dicit pr [...]tor. Since there the subject matter is not able to bear large expences. 4. I have observed, that where the nullities did arise incidenter from ano­ther pursuit, depending, that there it was received, ope exceptionis, least the other Process should sist, as was found in the case Haliburton contra Morison. Where a Reduction being intented at Haliburtons instance of Morisons Right, ex capite in­hibitionis, it was alledged that Morisons Disposition depended upon a Right prior to the Inhibition. To which it was re­plyed, that that Right was null by the Act 1621. Upon which debate the Lords sustained the quarrelling of this Right, by way of reply. But I should rather [Page 97] think, that where the Right is betwixt most confident persons, such as Father and Son, that eo casu the nullity should be receivable by way of exception, both because the cheat is easiest, and most un­favourable: and because the Father, or very near Friend, might have made all concurr willingly to defend the Right, without the necessity of being called, which is the reason why Reductions are so neces­sary in other cases.

And in case any of His Ma­jesties good Subjects (no wayes partakers of the Fraud) have lawfully purchast any of the Bankrupts Lands, for a just and competent Price, &c.

IT is much debated amongst the Do­ctors, if Actio pauliana be Actio rea­lis, or not. The Gloss and some Interpreters assert it to be only a personal Action: and they conclude so, because the Possessor of what is alienated in defraud of Creditors, is not lyable to this Action, except he be particeps fraudis, or else have acquired the thing so alienated without any onerous Cause, that it is not the possessi­on, but the deed of the possessor that is considered. Our Law agrees in this with the Civil Law, for by this Paragraph it is Statute, that all who have acquired the thing alienated in defraud of Creditors, [Page 99] shall not be lyable to this Reduction, but such only as are partakers of the fraud, and have not payed a just price to the interpos­ed Person. As for instance, one dispons his Estate to his other Brother, without any onerous Cause, which Brother Dispons it again to a Stranger who knew nothing of the Fraud; and who pays a just and adaequat price for it. In which case, a priorlawful Cre­ditor, may reduce the first alienation made to the Brother, but he cannot reduce that alie nation that is made by the Brother to the Stranger: And yet if that Stranger did either know that the first conveiance was fraudulent (which the Act calls the being partaker of the fraud) or if he payed not an adequat price, then and in either of these cases, the Creditor may reduce even the Disposition made to the Stranger; he is said to be partaker of the Fraud, to whom it was intimate by the Creditor, that he should not buy, l. ait praetor ff. hoc tit, which is founded upon excellent reasons, and would certainly hold in our Law; though I remember not that it is already so decyd­ed. For this intimation would take away the bona sides, upon which the priviledge [Page 100] granted by this Act to singular Successors is founded.

But the third parties knowledge, that it was to the behoove of the Bankrupt, or of the confident, is still sufficient to take from him the benefit of his Clause; which be­ing granted, because of the third parties bo­nafides, cannot reach to such, whose know­ledge put them in mala side, as was found 22 January, 1669. Hamiltoun contra Ha­miltoun, and the Viscount of Fren­dricht.

As also, if the Disposition made to the first receiver, whom this Act calls the in­terposed Person, did bear love and favour, and was made to a confident Person; in that case, the Right is reduceable. For in that case, the third Person buying ought, to have known the nullity, & scire, & sci­re debere equiparantur; and this was found in the Reduction of a Tack, 1672. Hay contra Jamison. Though that Tack had past thorow many hands, and to singular suc­cessors, who had acquired their Rights for onerous Causes.

I have heard it debated, that though a third Person, who acquires a Right from [Page 101] the Person interposed, for an onerous Cause, be not lyable to this Action; yet a compryser, comprysing this Right from the interposed Person, had no such pri­viledge. As for instance, a Right made by one Brother to another without an one­rous Cause, is reduceable; and therefore if one of the Creditors of that Brother, to whom the Right was made, should com­pryse the Right so made to him: It was alledged, that as this Right would have been reduceable in the Person of the first acquirer, if it had continued with him; so it would have been reduceable from the Compryser; and that for these reasons, 1. A Compryser compryses only, omne jus quod in debitore erat, tantum, & tale: and therefore since it was reduceable in his De­bitors Person, it ought to be so in his, even as it had been reduceable from his Creditor, ex capite inhibitionis, aut inter­dictionis, &c. 2. The express words of the priviledge, given by this Paragraph, does not meet this case, for the words run thus; if any of His Majesties good Subjects, shall by lawful bargains purchase. But so it is, that he who compryses, cannot be said [Page 102] to purchase by way of bargain; but though a comprysing be a legal Disposition, and Assignation, yet it is a sale by the Judge, and not a purchase, or Contract amongst the parties. 3. This case seems not to fall under the reason of the Act; for the Act priviledges such, as having a good security, do in contemplation of that Right (which for ought they can know, is sufficient) lay out their money; and so follow the faith of that Right in the first constitution of their Debt. But the Compryser lent his money to his Debitor, without shewing that he relyed upon the Right now quar­reled, but finding thereafter that he could not recover his Debt, he comprysed any thing he could find. 4. If this were al­lowed, it would open a wide door to fraud; for Rights might be made to confident persons, and then might be comprysed; which any Creditor might be induced to, whereas few would adventure to buy ori­ginally these Rights, as said is. This case was debated in July, 1666. betwixt Jack and Jack, but was not decyded: and it did divide the opinions of very able Law­yers.

[Page 103]It may be doubted also, whether the receiver of the Right from the interposed Person, knew not that the Right was fraudulent the time of the alienation, but knew before he received the thing sold, that the first alienation was fraudulent, whether this Right be reduceable or not. And it seems that if he knew either the time of the Vendition, or Tradition, that the Right was fraudulent, that he is particeps fraudis, and ought not to have the benefit of this exception; for tradi­tionibus, & non venditionibus, transfe­runtur rerum dominia, and so he can­not be said to purchase a Right, bona side, who knew before Tradition, the fault of the Right Disponed, and he might have kept the price in his own hand till▪ Tradition, and so needed not have been prejudged. Likeas, it is a principle in Law, that bona sides requiri­tur in emptionibus; & tempore contra­ctus, & tempore factae traditionis, l. 2. ff. pro empt. & l. Fin. ff. pro solut.

Though the Doctors give as a rule that such alienations are reduceable, as are made without an onerous cause, and where [Page 104] the receiver is particeps fraudis: Yet they except two cases from this Rule, First, deeds done in favours of the Fisk, or of a City, or Incorporation, which they declare re­duceable, though the receiver was not particeps fraudis, l. 2. C. de debitore Civi­tatis. But I think this most unreasonable; nor would it hold in our Law: for as the Act makes no exception in favours of the [...]isk, so in dubio, semper contra siscum respondendum. And since this third party is only priviledged, because of his bona sides, I see not why he should be pre­judged by the Mala sides of his Author: or why he should loose his priviledge where he can alledge his bona fides. The second exception is in favours of a Patron, who might revock the Goods sold, though the Buyer was not particeps fraudis. l. 1. ff. si quis in fraudem patro: But in that case he was lyable to pay the price, ibid. we have no use for this in our Law. And yet by our Law, Masters have no such a ta­cita hypotheca, in the Farms that grew upon their own Ground, that they may re­duce any Disposition made thereof, even to a Buyer who was not particeps fraudis.

[Page 105]So favourable likewise are singular suc­cessors, who are not particepes fraudis; that a Tack being craved, to be reduced ex capite fraudis, as granted and deliver­ed Blank quoad the issue or▪ endurance, and in the Blank, eighth years being filled in: Whereas ninteen years were only communed upon; this was found relevant to reduce the Tack quoad the Tacks-man, who had acquired Right to the Tack for but not quoad a singular Successor, for an onerous cause, without being particeps fraudis. First Decem. 1671. Crichtoun contra Crichtoun and Hannans: and a Dis­position being craved to be reduced, as granted by a person who was only a trusty, having given a Back-band; the Disposi­tion, though made as said is, to a singu­lar Successor, was found to be reduce­able, if the Right was made without an onerous cause; or that the singular Suc­cessor knew of the Disponers Back-band; though it was but a personal obliegement, and not in gremio juris; and consequent­ly could not in Law have otherwise af­fected a singular Successor. 20 Novem▪ [Page 106] 1672. George Workman contra John Cra­furd. And it has been often found in our Law, that though gifts of Escheat, ta­ken to defraud Creditors▪ be reduceable in the persons of such as took them; yet they are sustained, when establisht by assig­nations in singular Successors, no wayes partakers of the fraud: And an Assignay is not in Law obliedged to suffer his Ce­dent to swear in his prejudice, if his Assignation be made for an onerous cause; but if either the Assignation be granted without an onerous cause or be made upon design to preclude the Debitors from these just remedies: then whatever is com­petent against the Cedent, is competent against the Assignay; so that we may establish this general rule, viz. particepes fraudis, have never the priviledges com­petent to singular Successors.

If the Disposition has been made by the interposed person, for payment of a price, but the price is not equivalent to the thing sold, then in so far as the thing exceeds the price, the Disposition will be reduced, but it will stand in quantum; it exceeds even as a Disposition made to a [Page 107] conjunct person, will be valid in so far as it is onerous, for in either of these cases is the Disposition absolutely revockable. But either the conjunct person in the one case, or the singular Successor in the other, will be obliedged to make up the true and just price, as was found in the for­mer case, Henderson contra Henderson, and the 12. Janu. 1632. Skeen contra Betson, which is likewise more fully clear by these words of the Act, viz. providing alwayes, that so much of the saids Lands, Goods or Prices thereof, so trusted by Bankrupts to interposed persons, as hath been really payed, shall be allowed unto them, they making the rest forth-com­ing to the remnant Creditors: and the reason of this is, because the Law did not absolutly oppose the alienation; but only did reprobate it, in so far as it was done to the prejudice of Creditors. And therefore, the Law resolving not to pursue its revenge, further then its design, did reasonably ordain, that these Dispo­sitions made in defraud of Creditors, should only be quarrelable, in so far as the price was not equivalent. This is likewise fit [Page 108] for Commerce; which is never restrained in so far as is absolutely necessary: and this is very suitable to the Analogy of Law in other cases; for thus, according to the common Law, he who had taken an obligation for more Annual-rents then the Law allowed, did not thereby loose all his own Annual-rents, but only loosed them in so far as they exceeded the quota prescrived by Law, l. Placuit ff. de usuris. And a Donation bearing a greater summ then the Law allowed, when the Do­nation was not insinuated or Registrated, did not lose the whole, but only qua­tenus superat definitionem legis l. sancimus, C. de donat. And in our Law, though it be by expresse statute appointed, that Tacks set by inferior beneficed persons, without the consent of the Patron, for longer then three years, shall be null; yet quoad these three years they are still sustained, and are not annuled in totum. And albeit by another Statute, all Bands and other Writs not subscribed by the party, or two Nottars for him, be de­clared null, if exceeding one hundred Pounds. Yet though granted for a greater [Page 109] summ, it will be valid, if he to whom it was granted restrict it to an hundred Pounds: And though Witnesses can prove nothing above an hundred Pounds; yet though the summ craved be greater, the pursuite will be sustained to be proven pro ut de jure, if restricted to an hundred Pounds. And yet I confess; that these Arguments from Analogy, do not in this absolutly hold, for in several of these instances, the deeds specified habent in­dividuam, formam, prescribed to them by the Law, & ubi actus est individuus, ratione formae, ea non servata, actus omnino corruit, & utile per inutile vitiatur. But the Arguments taken from Donations, & ab usuris quadrat with this case or at least the Argument ab usuris does.

But the receiver of the Price shall be holden to make the same forth-coming to the Bankrupts true Creditors, for payment of their lawful Debts.

THough the interposed Person be particeps fraudis, yet he is not by the Act, lyable to restore the Land, or others disponed to him simply, or the price thereof, if he has dispon'd, the same to a third Person: But there will be deduced, or allowed to him, so much either of the Land, or price, as he has given, or payed to lawful Creditors: and the superplus is to be forth-coming to the other Creditors, who wants their due payment; and that not without new dilligence, by these who have reduced the Right granted to the interposed Person, by Arrestment, or otherwise. But if the Creditor who has prevailed in the Re­duction, had not done diligence to affect [Page 111] the Land, or price, in the hands of the interposed Person, either by Compry­sing, or Arrestment, he must notwith­standing the Decret of Reduction, affect the same: Otherwise, other Creditors doing diligence, will be preferable, seeing Reductions do not settle a Right upon the Creditors to their Debitors Estate, but they only sweep away such fraudulent Rights, as may stand in the way of their diligence, and execution; and hinder them thereby to get a Right to the Debi­tors Estate.

And it shall be sufficient proba­tion of the Fraud intended a­gainst the Creditors, if they, or either of them, shall be able to verifie by Writ, or Oath of the party receiver, that the same was made without any true Cause, &c.

FOr clearing of these words, it is fit to know, that the word Fraud, is variously used by Lawyers; it is taken pro poena capitali, l. eum autem ff. de Aedilit edict. pro periculo alicujus in commo­di, l. 1. ff. ad l. falcid pro impostura, l. ali­ud est fraus ff. de reg. jur. pro privatione juris l. 2. ff. de his quae intest delen: But here, Fraud signifies the prejudice arising to the Creditors by unlawful alienations. And even in the Civil Law, it was taken sometimes pro damno pecuniario. l. is ff quae in fraud credit. And he is said to de [Page 113] fraud his Creditor, who prejudges him by that Alienation, without necessity of prov­ing any previous design of cheating; for that design being a secret and latent Act of the mind, the Law which designed mainly the indemnity of the Creditor, would not burthen him with so narrow, and difficult a Probation. But presumpti­one juris, & de jure, concluded that Alie­nation to be made in defraud of Creditors, which wanted an onerous Cause: and this is fraus in re, though not in consilio. And Lawyers have well distinguished, frau­dem in re, a fraude in consilio, Accurs. ad §. in fraud just. quib. ex caus. manum. which is suitable to the distinction used by the Law it self, in the Title, de dolo. inter dolum ex proposito, & dolum ex re ipsa: for fraus, & dolus, differ only, as genus, & species. [...]raus being more general then dolus, as is fully proved by Bargalius, de dolo lib. 5. c. 4. But albeit the Civil Law makes Alienations in conjunctam per­sonam, to be only sufficient probation, si aleae presumptiones concurrant, l. si quis C. de bon. damnat. Burgal, de dol. c. 8. l. 5. num. 43. Yet our Law makes the [Page 114] want of an onerous Cause, per se, though nothing concur, to be a sufficient proba­tion of the Fraud, against a conjunct, or confident Person. And albeit by the Ci­vil Law, fraus, & eventum, & consilium desidera [...]. [...]. Basil. l. 15. h. t. Yet our Law requires only fraudem ex eventu, without considering whether there was fraus in con­silio; for albeit he who received the Dis­position, knew not that the Disponer had Debt, or Creditors: Yet if the Estate of the Disponer was not able to pay his Debt, our Law will reduce that Dispositi­on, if made without an onerous Cause; which is also expresly contrair to l. 6. §. 4. basil. h. tit. quae in fraud. cred. [...]. What probation shall be sufficient in Reductions, upon this Statute, is determined by this Paragraph; and though the Statute appoint the proba­tion to be by the oath of the party receiv­er, or by writ, bearing no onerous Cause, or bearing to be for love and favour; yet the practies has in this point so varied, that it will be fit to reduce our present decisi­ons into these conclusions. 1. Narra­tives, [Page 115] bearing the Disposition to be for true and onerous Causes, being but the asser­tion of the party granter, does not prove the Cause to be onerous; else it would be ve­ry easie to elude the Act. 2. Though the Narrative does not prove for the gran­ter, yet it proves against him, nam ver­ba narrativa, as Craig observes, pag. 145. licet sepe falsis sima probant tamen contra proferentem. And therefore, if the Dispo­sition quarrelled, be made to a conjunct Person, and bear to be made for love and favour, it will be reduced, that though the Person to whom it is granted, should offer to prove the onerous Cause, as was found in the case Stewart contra Graham, nothing can prove better the design of the parties, then a writ under their own hands; for as this cannot fail, so if the receiver should be allowed to lead a subsequent Pro­bation, for proving the onerous Cause, contrair to the writ produced, it is very probable, that he might use indirect means for proving the said onerous Cause, and this might both disappoint the Creditors, and open a door to Perjury; & sibi impu­tet, the pursuer who accepted of a writ, [Page 116] bearing such an Narrative. 3. A Right made by very conjunct Persons, such as Father and Son, are made to Persons against whom there lies a presumption of Fraud, either because of the relation, or because the receiver had no visible Estate, where­with to acquire ex titulo oneroso, the Right disponed in that case, though the Right bear an onerous Cause: Yet the receiv­er must prove the onerous Cause, other­wise then by the Narrative. 4. If the Disposition bear, that the same was made for satisfying of Debts, owing by the Dis­poner, or for satisfying a Debt owing to the Receiver: he must prove the onerous Cause; as was found 23. March 1624. Duff contra Cullodin, though the Dispositi­on there, was made only to a Brother in law, and the reason of this seems to be, because if there was any antecedent Debt, that Debt may be easily proven; and the Lords have proceeded, so far according to the presumptions of Fraud, which have appeared, that where Bonds have been produced, proving the Disponer to be De­bitor, prior to the Disposition; they have yet ordained the onerous Causes of these [Page 117] Bonds to be proven. Because if confident persons design to cheat their Creditors, they may as easily grant Bonds bearing borrowed Money: and then Dispositions for payment of these Bonds; as they may simply grant Dispositions bearing onerous Causes. And as a Minors Disposition would not be found proven to be for an onerous Cause, though granted for pay­ment of a preceeding Bond, so neither should a Disposition granted by a Bankrupt; for a Bankrupt is as prone to cheat, as a Minor is to be cheated. And therefore, if the presumptions of fraud be very strong, they will ordain the party receiver to instruct the onerous cause, even of the preceeding Bond, by the parties who received, and the Witnesses who were present; or else will ordain the concealed Bands to be produced, or at least the party receiver to depon thereup­on, as was found, December 1671, Duff contra Brown, and December 1773. Camp­bell against Campbell. In which last case, a woman being Creditrix by her Con­tract of Marriage, as being provided to the half of the Moveables which should [Page 118] pertain to her Husband, the time of his Death, and to 200. Merks out of the other half, pursued Reduction of a Dis­position made to her Husbands Brother of his Moveables, who defending him­self by a Disposition, made for an onerous cause, viz. A Bond granted by his Bro­ther to him, it was urged, that the Bro­ther to whom the Disposition was made, should prove the onerous cause of that Bond, for though the Bond bare oner­ous causes, yet it is easie by such Bonds to cheat Creditors. And it was presumeable in this case, that the Bond was not granted for an onerous cause, since payment of Annual-rent and Execution was deferred till the granters death. Not­withstanding of which presumption, the Lords allowed the receiver to give his Oath upon the onerous cause▪ especially seeing it was ordinar for Brothers to spare their Brothers, both as to Annual-rent, and as to Execution: And much more when the Brother who granted the Bond was sick, and would die shortly in all hu­mane probability. Nor did they think fit to burden the receiver with other Proba­tion [Page 119] of the onerous cause, since the Dis­position bare to be for onerous causes, and the Bond was produced, bearing to be for onerous causes also. So that to require a higher Probation backward, was dare progressum in infinitum. And it was well known that Brothers have such private Transactions, Trusts, and Lendings, that they pay and receive Money, to, and from one another, without Witnesses. 5. When Bands are granted to Trafficqueing Mer­chants, who are Brothers in Law, or such Relations as are known to be men of integrity; it is hard to put them to prove the onerous cause, otherwise then by their Oath, for Merchants and others use to adhibite Witnesses to all their Bargains, and in many cases they cannot have Witnesses to their Bargains, being made abroad, and in Remote Countries; and to tye them not to make Bargains with their near Relations (with whom ordinarily they enter into Societies) were to ruine all Commerce. And though Moveables use to be Dispon'd without Writ, nor does the Law require any Writ to their trans­mission; yet in the former case of Ander­son, [Page 120] the Lords forced him to prove the onerous cause of his Disposition to Howats Moveables, though he alledged that he could be in a worse condition by his having a Disposition, then he would have been without it: but so it is, that his Right to Moveables would have been suf­ficient without Writ; but here there was a Disposition, but where there is no Dis­position, it were hard to reduce a Right made to Moveables, because I could not prove the onerous cause. As for instance, if I bought a horse, and payed the Money, no Creditor of the Sellers could force me to prove the price to be payed. 6. Some­times the Lords use to suffer the receiver, to astruct the onerousnesse of the causes, by one or moe Witnesses, and to give their Oaths in Supplement, and according as the relation is remote, or the presumption of the receivers honesty strong, they lessen the necessity of the strong adminicles. And thus the 5. July 1673. In the case of Mar­garet Home contra Smith, they sustained one Witness, deponing that he was Wit­ness to such a Bond, and that he heard the granter of the Bond acknowledge that he [Page 121] was Debitor, to be sufficient adminicles, being joyned to the Defenders Oath of Supplement. And in the case above cited, 18. November 1669. Andersons Disposi­tion being quarrelled, as being omnium bonorum, and for a false cause, a great part of the summ for which it was granted, being payed before the Disposition; yet the Lords sustained the Disposition in swae far, as it was granted for Summes owing before the Disposition, to be proven by the Oath of Anderson himself, and of the per­sons to whom the Money was payed, and for what Summes were payed before dili­ligence at the pursuers instance, though after the Disposition, to be also proven by the Oath of the common Debitors, and of these to whom the Debts were payed: And yet where the Disposition did bear, to be not in general for payment of the granters Debts, but particularly for pay­ment of the Debts after specified, and some of the Debts being filled up with new and different Ink, the Lords would not allow these Debts, except the Defen­der would offer to prove, that these Debts were filled up before the pursuer did diligence as a Creditor, after which time, [Page 122] there being jus quesitum to him by his di­ligence, as no Disposition could have been made to his prejudice, so neither could he be prejudged by filling up other Creditors names, then these contained in the first Disposition; for else it were easie to cheat all Creditors by such Blanks. And yet here it was offered to be proven, that it was communed expresly, at the very time of the granting of the Disposi­tion, that these Debts should be payed which was alledged to be sufficient, being propon'd in fortification of the Dispositi­on, which was prior to the Creditors di­ligence, 15. January, 1670. Lady Lucie Hamilton, against the Laird of Dunlap, and others.

These remarks may reconcile the con­trair Decisions that are to be found upon this head, such as the 22. January, 1630. Pringle contra Mr. Mark Ker. Wherein the Lords found no necessiry to burden the Pursuer, that he should prove a true and onerous cause, otherwise then by his own Oath, because as is there observed, when parties borrow Money or Contract mutu­ally, there is no other way to prove the [Page 123] borrowing or Contracting, but by the Writ then made and found expresly, that this was not a Negative which proves it self. And yet upon the 12. February, 1622. It was found that this part of the Act of Parliament: was a Negative, and proved it self.

It seems likewise, that if the party who made the Right, was not able to pay the Debt otherwise, that then the Probati­on should be so much the stricter: And though the Oath of the receiver should not be taken as a full Probation; yet if the receiver of the Disposition have in any former pursuit, been forced to depon upon the onerousness of the Cause, that Oath ought to purge any presumption of fraud; for though that pursuit should not bind any other then the persons who were Pur­suer or Defender there, as what was inter alios acta, quae aliis non nocet, yet the re­ceiver having been put to swear, ought to have this advantage also, as he had that trouble. And that Oath being upon the same subject-matter, it ought to be still much respected; especially since this Oath is only required to clear the Judge, as to [Page 124] the truth of the Debt, and as to the oner­ousness of the Cause.

Whether a Disposition procured by a Tutor to his Pupil may be quarrelled, as granted in defraud of lawful Creditors, and how the fraud may be proved, in that case may be doubted, for it may seem, that no mans Right can be taken away, without some Act of his own, and the Tutors Oath cannot prejudge his Pupil, for a Tutor may make his Pupils condition better, but cannot make it worse. And yet there may be two distinct cases consi­dered here, one is, if the Disposition be granted without an onerous Cause; and there is no doubt but such Dispositions may be quarrelled, for if the Minor can­not instruct an onerous Cause, his Dispo­sition is null; and there should be no diffe­rence as to this, betwixt Majors and Mi­nors: And in this sense is to be under­stood, l. 6. §. 10. h. t. Si quod cum pupillo gestem est, in fraudem creditorum, Labe [...] art, omnino revocandum esse quia pupilli ignorantia non debet esse captiosa cre­ditoribus, & ipsi lucrosa, which agrees with l. 6. §. 6. Basil. h. t. though it be the [Page 125] more general [...]. The second case is, when the Tutor payed a Price in the Pupils name, but knew it was granted to defraud the Disponners Creditors, it seems that though a Tutor cannot depone upon Rights not acquired by the Tutor himself, yet in Rights acquired by himself he may depone, and his Oath acknowledging the the fraud should annul the Pupils Right acquired by his Tutor, for quem sequitur commodum, eum sequi debit incommodum: and that there is no reason the poor Cre­ditors should be prejudged by inserting the Pupils name, but he ought to pursue his Tutor. But yet I incline rather to think, that if any Tutor knowing that such a De­bitor was to defraud his Creditors, did lend out my Money to buy Land in my name; that though his being partaker of the fraud might have annulled this Right, if it re­mained in his own person, yet his fraud being meerly personal, cannot prejudge me who was innocent, no more, then if my Factor should collude with such a De­bitor, would his collusion prejudge me. And so neither of their Oathes can prove [Page 126] against me, for their fraud is not relevant against me, except in so far as I have re­ceived advantage by the fraud of my Tu­tor, or Factor: In which case, deeds ei­ther done by the Minors self, or by his Tu­tor, are reduceable at the instance of law­ful Creditors. l. 10. S. 3. Basil. h. t. [...] ▪ But if Minors sell any Lands in defraud of their Creditors, then if they sell with­out the consent of their Tutors or Cura­tors, the alienation will be ipso jure null, and so needs not be reduced: But if the Disposition was made with the consent of Tutors and Curators, though it be reduce­able upon minority and Laesion, yet the Minors Creditors cannot raise a Re­duction, ex hoc▪ captic, for that reason is per­sonal, nec egreditur personam minoris; but the Creditor in this case must comprise the Right or action competent to the Minor, and as having Right to the Action in man­ner forsaid, he may reduce the deeds done by the Minor.

Whether a Defender in their Reducti­ons ex capite fraudis, may be forced to [Page 227] depone whether he was particeps fraudis; my be doubted, and it appears that he cannot, for he being partaker of the fraud, by this Statute diffames all such as are guil­ty of it. And by our Law, no man is oblieged jurare in suam turpitudinem. But yet I find, that the Lords have, ex nobili officio, obliegeded parties to be examin­ed upon their accession to such contrivances, 7 Febr. 1673. Dame Elisabeth Burnet con­tra Sir Alexander Fraser. And even in Improbations, they examine, ex officio, the parties who are alledged to be Au­thors; though the hazard be greater there, then in thir Reductions. And see­ing reasons of circumvention are referred to Oath, why may not the being partaker of the Fraud, be referred to Oath? if the Lords, and His Majesties Advocat, de­clare, that the deponers Oath shall not in­fer, infamiam juris, against him, which is a Criminal punishment; without which be secured to him, I conceive he is not ob­lieged to depone.

It may seem, that the Action of Redu­ction, founded upon this Act, against such as are partakers of the Fraud, should [Page 228] not prescrive, because this is a cheat which the Law ought not to maintain, nor as­sist, and this should no more prescrive, then actio falsi dos; whereof this cheat seems but a branch, or which at least, it does much resemble. And by the Can­non Law (which as Craig observes, we prefer to the Civil Law in Scotland, where matters of Conscience are considered) he who is in mala fide, cannot prescrive, 6. sin. de prescript. And to allow the par­taker of the Fraud a security of prescri­ption, were to tempt him to cheat. Notwithstanding▪ of all which, certainly all actions upon this Act would prescrive: for neither our Act 28. Par. 5. I. 3. Which appoints the prescription of move­able Rights, nor the Act 1617. Which introduced prescription in Heretable Rights, makes any exception in favours of this Action. And our Law being de­sireous to secure all Persons in general, has drawn these Acts very comprehensively, & sibi imputent, such as are prejudged, who suffered so much time to elapse with­out diligence. Likeas the Civil Law, which considered malae fidei possessores, with [Page 129] a very unfavourable eye, does allow the benefit of even 30 years prescription, ma­l [...] fidei possessori, for the same reason, as is clear, C. de. prescript. 30. & 40. annor. And the same is observed in France, Guid. Pap. quest. 199. And though we observe the Cannon Law, in case of Marriage, Teinds and such like, which are some­what Ecclesiastical by their own nature; yet in prescriptions which had their ori­ginal from the Civil Law, we fol­low the dictats of that excellent Law.

Or the most part of the Price thereof was converted, or to be converted, to the Bank­rupts profit and use.

ANother presumption of the fraudu­lent Disposition of the Bankrupts Estate, is, if the price of the De­bitors Estate was converted, or to be con­verted [Page 130] to the Debitors own use, and pro­fit. And this proceeds upon the same rea­son, whereby the Rebels Escheat is de­clared null, if he be suffered to remain in Possession, Act 145. Par. 12. Ja. 6. And as by that Act, the suffering the Rebels Wife or Bairns to remain in Possession, is equivalent, as if the Rebel himself remain­ed in Possession; so if it can be proven, that the price of the Debitors Land was applyed to the behove of his Wife, and Children; I conceive it is equivalent, as if it were converted to his own be­hove, though this Act do not expresly beat it.

Upon this part of this Act, arose lately the ensuing debate; Hermistoun being ob­liged to pay the Lord Sinclar 8000 merks as an Annuity, and for his Aliment: This oblidgement was assigned to John Watt, and was by him transferred to George Cock­burn, who did pay several Debts for my Lord, but finding that his payment, might thereafter be challenged by my Lords Cre­ditors, as made in prejudice of them who were prior Creditors, he did take the gift of my Lords Escheat, and gave a back­bond [Page 131] to the Exchequer, wherein he oblieged him to compt at the sight of the Exchequer, for the superplus that exceeded the payment of the Debt truely payed, or to be payed by him, for my Lord. The Creditors having quarrelled those payments upon this act, 1621. as made to their prejudice, because though it was free to the Exchequer, to gift my Lords Escheat, and to burden it with any back-bond, yet this gift was granted truely to George, in contemplation of his former Right; which former Right was null, as made to defraud them, and for the use of their Debitor; and the Right made to him was null by this clause, of this Statute, by which all Rights made to any Person, are presumed fraudulent, if the price be converted to the behove of the Debitor: and if this were allowed, poor Creditors might soon be cheated by so easie contriveances. And though His Majesty may prefer a Donator to the true Creditor, where that is chiefly designed by His Majesty, yet where the gift is ta­ken only by a Person who had formerly defrauded Creditors, meerly to pallia [...] the fraud, in that case, the gift laborat eo­dam vitio, being also taken for the behove [Page 132] of the Debitors, and so is null by the for­mer Act 145. Par. 12. Ja. 6. But this was repelled, because the Lords found, that whatever might be said against the former Right, upon this Statute, yet the gift of Escheat did sufficiently defend him, for since any Superiour might allow an ali­ment to his Vassal, being Rebel, and might grant his liferent Escheat for that effect, why should not this liberty be al­lowed to the King, 3. December, 1674. But if this gift had not interveen'd, it seems uncontraverted, that the obliegment to pay Sinclars Debts, though undertaken prior to any Action at the Creditors instance, was not sufficient to defend the undertak­er against prior Creditors, for the Right being at first quarrelable at their instance, as done in defraud of them; it being a Right made for the behove of the Debi­tor: it could not thereafter convalesce, by▪ undertaking the Debitors debts. For it was all one to pay the Money to Sin­clars Debitors, as it would have been to have payed it to himself. And if the Mo­ney had been payed to my Lord, to the end he might have payed them, the pay­ment [Page 133] might without doubt have been quar­relable. And yet a deed once quarrelable may thereafter convalesce, if their was no Fraud in the first contriveance, v. g. If an Uncle should Dispone his Estate to his Nephew, who knew not of his being in­solvent, this Right might be Reduced u­pon this Statute. And yet if thereafter, the Nephew should bonafide undertake the Uncles debts, before any diligences done by the Creditors, his Disposition would be sustained in so far as true Payment was made.

They making the rest forth­coming to the remnant Cre­ditors who want their due payment.

SInce by this Act, the Disposition made by a Bankrupt to one who was partaker of the Fraud, is reduceable▪ so that the buyer will be forced to quite [Page 134] the Land, or thing bought fraudulently to the Bankrupts true Creditor: It may be doubted, whether the buyer, though par­taker of the fraud, will get repetition of the price truely payed by him, from the Bankrupt to whom he payed it. And it may be argued, that he would not, because first, the Law never authorizes, nor lends its assistance, to recover what is due by fraudulent, and unworthy obligations, for there is behoved to be the Minister of Ini­quity, and to serve Vice in a mean, and sordid way, & ubi dantis, & accipien­tis turpitudo versatur, cessat repititio. l. 2. ff. de condict. ob. turp. caus. 20. The buyer in this case cannot complain of the Law, since he knew the hazard, and yet run upon it. 3. This were to invite men to commit cheats; whereas to deny them action of repitition upon the eveiction, were a ready mean to deter them, since the hazard would be so great. 4. This may be further clear, l. 1. C. de prescr. 30. annor. & l. hi qui C. de rescind. vend. & l. fin. C. de litig. & l. si fundum sciens. C, de evict. & l. 25. Basil. de reb. auth. jud. [Page 135] possidend. [...]. But yet the contrair, viz that the fraudulent buyer ought not to have repitition from the Bankrupt Seller; may be urged by these reasons, First, Crimes and Frauds are extinguished by mutual compensation, and therefore, since as the Buyer would have had an action of eviction, if no fraud had interveened, so ought he to have the same action where the fraud is mutual, for there it is in the same condition, as if had never been; for it is extinguished, l. vi­ro. ff. solut. matr. 2. If the Seller should not be oblieged to restore the price, he should gain by his own cheat, for his Creditors would be payed, by prevailing against the buyer, and he would retain the price. 3. Where the buyer and seller are in the same condition, his condition is most favoured by the Law, who seeks only to secure himself against loss; in pari casu melior est conditio ejus qui certat de damno vitando, l. non debet ff. de reg. jur. And this is also clear, per l. 3. C. de his qui vi metusve caus. & l. sin. C. Com­mon: [Page 136] de legat. I would rather perhaps in­cline to think, that because both have of­fended, therefore both should be punish­ed; the one by being oblieged to refound the price received, and the other by not get in git, though refounded: But that he should see it confiscated by publick au­thority, like the Legacies left to un­worthy Persons, who are uncapable of them; for these remain not with the Testator, nor yet go to the Le­gator, but fiunt caduca, and belong to the Fisk.

It may be here doubted, if in these Re­ductions, the defender who is to restore what is disponed to him, will be oblieg­ed to restore the fruits of the thing sold, and whether he will be oblieged to restore them from the date of the sentence, or from the time of Litiscontestation, or from the Citation. The Civil Law l. 25. §. 4. F. h. t. ordains not only the thing it self to be restored, but the fruits which were upon the ground at the time of the alienation, and these which were reaped after the action was intented, non solum autem rem ipsam restitui oportet, verum & [Page 137] fructus qui alienationis tempore terrae eohae­rent, quia sunt in bonis fraudatoris. Item eos, qui post judicium inchoatum recepti sunt medio autem tempore preceptos in re­stitutionem non venire. But the Basilicks differ somewhat, for they say, qui post li­tem contestatem percepti sunt. As Fabrot translates them, [...]. But these may be reconciled, because though in our Law, Litiscontestation is only made by the decision of the points in jure, and the assigning a day to either party to prove, whereupon an Act is extracted: yet by the Civil Law, Litiscontestation was made how soon the Defender denyed the thing craved, and so judicium inchoa­tum differed little with them, from Litis­contestation.

Our Senate observe as a general rule in all Reductions, to decern fruits to be re­stor'd from the time that the possessor knew that his Right was not valid: and therefore when it was palpably unjust, they use to decern from the date of the citati­on, but not from the citation upon the first Summonds, because these are but in­dorsations, where Copies are seldom tru­ly [Page 138] given, and so the Defender could not thereby be put in mala fide. This was so decided, Howison contra Gray, February 1672. And yet this seems to authorize the belief that citations upon first Summonds may be false, whereas since the Law com­mands them, it ought to believe them, and so punish the forgers, rather then discre­dit the form. If the nullity depend up­on a debateable point, they decern from the Litiscontestation, because that nullity was not clear till then, v. g. if a Dis­position were quarrelled as made to a Bro­ther in Law, and he alledged that the Act extends not to Brothers in Law, if the Lords found the Statute to extend to Bro­thers in Law, eo casu, if it were referred to the Defenders Oath; the Lords use to de­cern from the Litiscontestation; because after that the Defender could not doubt of the nullity of his own Right, though be­fore he might have doubted. But if the nullity depend upon extrinsick probation, which the Defender could not know be­fore sentence; as for instance, if it should be denyed by Act of Litiscontestation, that the Debitor became, and was insol­vent; [Page 139] the Defender could not be in malafide till this were found proven, and so ought not to be lyable in fructus, till sentence.

I conceive that these generals may be likewise particularly applyed to this Sta­tute, by considering three different cases, relative to the three different parts of this Statute.

The first is, that of the first part of the Act, by which all Dispositions made to confident, or conjunct persons, in defraud of lawful Creditors, without an onerous Cause, are so reduceable, that the aliena­tion being reduced, the fruits extant are to be restored from the time of the inten­tion of the cause, and not only from the time of Litiscontestation. And yet it would appear, that all the bygone prof­fits, or fruits, ought to be restored; not only from the time of the citation, but from the date of his possession: Because, 1. By the expresse words of the Statute, all such alienations are declared to have been null from the beginning, and so are in the same case, as if they had never been made. But so it is, if they had never been made, the Possessor behoved to have restored all [Page 140] the fruits, whether extent, or not, and even from the time of his possession. 2. This seems most reasonable, for the Law having dicharged such alienations, he who Contracts in spight of, or to cheat the Law, ought not to be protected by it; and if the Debitor might thus prejudge his Creditors, for it is a prejudice to them to want the fruits and profits of their Debi­tors Estate, from the alienation, till the time of intenting an Action, which pover­ty, or absence, ignorance, or latency of the deed, may keep them from intenting: and which may be very considerable and were it not absurd, that a gratuitous Disposition of an Estate, often thousand Merks by year, should carry the receiver to five or six years rent, extending to 50000. Merks, because these Rents were intrometted with prior, to the intenting of any Action of Re­duction, and yet the Estate should not be able to pay all the Debts due to the many poor Creditors, who are Pursuers of the Reduction.

The second case is, where the Disposi­tion was made to one who was Particeps fraudis, and he is to restore even all the [Page 141] profits from the date of the alienation, whether they be fruits occasioned by his own industry, or brought forth by the na­ture of the thing possest. For he who was partaker of the fraud, is malae fidei Pos­sessor, and such are still discerned to re­store all, fructus extantes rei vindicati­one; & consumptos conditione sine causa, l. 3. C. de condict. ex leg. nor ought he in reason to reap advantage by his own cheat: and as he cannot blame the Law for severity to him, since he occasioned his own losse; so the Creditor might complain that such as cheated the Law, and him, were en­riched by his loss. And the reason why bonae fidei possessor facit fructus consumptos suos, is, because he not knowing but these pro­fits were his own, thought he might live accordingly, this reason is wanting in him who is partaker of the fraud, for he knew that these profits belonged to others, and so should not have spent them. And though it may be alledged, that all Dis­positions made to confident, or conjunct persons, are reduceable by this Act, as frau­dulent, and therefore the receiver cannot be called bonae fidei Possessor in no case [Page 142] for nothing is so contrair to bona fides, as Fraus. It is answered, that a Disposi­tion may be made to a conjunct person, who knew neither that the Disponer had Cre­ditors, or that his Estate was not able to pay them, and Fraus ex eventu, as I observ­ed formerly, is not Mala fides.

The third case, is of Creditors who got a Disposition from the common Debitor for payment of their Debt, but it is re­duceable at the instance of other Creditors, who have done diligences; and these, I think, should according to the rules of Justice, and Reason, be only obliedg­ed to restore the profits of the thing so dis­pon'd from the date of the sentence: for since they are more favourable then a con­junct perrson, who gets a Disposition without an onerous cause, and that he luoratur fructus ante citationem perceptos, they ought to have more favour. But I have not heard this debated, nor de­cided, and it is generarly believed that they would be lyable after citation, but if he hath dolose received payment, and was particeps fraudis, even he, though a Cre­ditor ought to restore all the profits received [Page 143] by him from the time of his pos­session. In all which restitutions the re­storer will have detention of the profitable expences bestowed by him, whether he be bonae fidei, or malae Possessor l. 5. de rei vin­dicat. [...]. Basil. l. 10. §. 14. h. t. To which there is also added, [...]. Et si quae aliae ex creditorum volunt ate factae sunt.

The Civil Law ordained the fruits that were upon the ground, the time of the Dis­position, to be restored, though these were consumed before citation, l. 25. §. 4. h. t. Because fructus pendentes, were pars▪ soli, and so were to be restored; but this has not been craved with us: and since they use to be bona fide spent, there is no reason to restore them more then other fruits. I have heard it contraverted, whether a person to whom a Disposition is made in defraud of Creditors, may when that Disposition is reduced, pursue by way of Action, for the expenses he bestowed necessarily in reparing the Lands, or houses disponed; and it may seem that this being once a Debt due to him, it [Page 144] cannot be taken away but by a Discharge [...] and yet Lawyers are clear, that though such expenses may be retained, or that the Defender in such Reductions may alledge that his Right cannot be reduced, till all his expenses be repayed. Yet if he suffer his Right to be reduced without proponing upon his expenses, and meliorations, then he seems to have past from them. For the Law presumes, that if he had any thing due to him, he would have craved it before he was dispossest: And albeit the scolion ad l. 28. tit. Basil. de sumptibus in re aliena factis, asserts this only de malae fidei possessore, [...]& l. 46. ibid.! this is also asserted de bonae fidei possessore, [...] which agrees with l. sumptus de rei vind. & l. si in area de condict. indebit. But yet it is the opinion of some eminent Lawyers with us, that evenafter the Right is reduced, the person to whom the Right is made, may recover payment of what he necessarily bestowed even by way of Acti­on: and Molineus ad consuetud. parisiens. t. i. [Page 145] gloss. 5. Is of their opinion, and asserts that the present customes of all Courts have receded as to this from the Civil Law, and yet it may seem in our Law, that this is competent and omitted, and so should rather be allowed in our Law, then in the Civil Law, especially seeing this is of the nature of compensation. For when the Pursuer craves the thing dispon­ed to be restored, with the fruits and inte­rests: it seems to be a sufficient ground of compensation, or at least an exception quae sapit naturam compensationis, that the Defender bestowed as much upon the thing craved to be reduced, as may compense the fruits, or a part of the Stock, and by expresse Act of Parliament, com­pensations are not receiveable after sen­tence, and therefore neither should it be lawful after sentence of Reduction, where­in this allowance might have been craved, to seek allowance by way of Action, for what was bestowed in Mellorations, or necessary expenses.

And if in time coming, any of the saids Dyvours, or their inter­posed partakers of their Fraud, shall make any voluntar pay­ment, or Right to any Person, in defraud of the lawful, and more timely diligence of ano­ther Creditor, having serv­ed Inhibition, or used Horn­ing, Arrestment, Compry­sing, or other lawful means duely to affect the Dyvours Lands, or Goods, or Price thereof to his behove: In that case, the said Dyvour, or interposed Person, shall be [Page 147] holden to make the same forth­coming to the Creditor, hav­ing used his first lawful dili­gence, who shall likewise be preferred to the Creditor, who being Posterior to him in dili­gence, hath obtained payment by particular favour of the Debitor, or of his interpos­ed confident, and shall have good action to recover from the said Creditor, that which was voluntarly payed, in de­fraud of the Pursuers dili­gence.

[Page 148]ALbeit by the first part of the Act, all Dispositions be allowed, if made for onerous Causes, to conjunct or confident Persons, yet that only holds where Creditors have done no lawful dili­gence: But where Creditors have done lawful diligence against the Bankrupt, by Inhibition, Arrestment, Horning, Com­prysing, or otherwayes in that case, the Bankrupt against whom the diligence is used, cannot make any voluntar Right of his Estate, to prefer thereby any Creditor he pleases, to the Creditor who has used diligence, and that though the Creditor who has got the Dispositi­on, was likewise a lawful Creditor: but in that case the Creditor who is preferred, is declared by the Act to be lyable to make forth-coming the price of what was dispon­ed to him.

By the principles of reason, he seems not to act fraudulently, who gets pay­ment of what is due to him. But yet by the Civil Law, postquam Creditores a Ma­gistratu in possessionem bonorum missi erant, their Debitors could not even pay any true [Page 149] Con-creditor, and so prefer one Crditor to another, suitaly to which, our Law has not allowed here the prefering one Credi­tor to another, after diligence done by Horning, Inhibition, &c. Which dili­gence we have equalled to the missio in possessionem by the Roman Magistrate: And in effect there can be no diligence done in Scotland, without the authority of the Magistrate; for no Inhibition, Horn­ing, &c. can be raised without a warrand from the Magistrate. And as it was rea­sonable that a Creditor qui sibi vigilavit, by getting payment, should not be pre­judged; so it was as reasonable, that pay­ment made to him in prejudice of another Creditor, qui sibi vigilavit, by doing diligence should not be sustained. And thus we may reconcile this part of the Sta­tute with l. 6. §. 6. h. t. which sayes that qui suum recipit nullam videtur fraudem fa­cere, with which agrees l. 5. §. 2. Basil. h. t. [...].

From this part of the Act, it is first observeable, that though voluntarly Rights are reduceable, at the instance of prior Creditors, who have done diligence; [Page 150] yet necessary Rights are not, and there­fore, if the Bankrupt was oblieged by a Minute to sell his Land, before he was put to the Horn, if for implement of that Mi­nute, he should thereafter dispone his Lands, that Disposition may seem not Reduceable, at the instance of a Creditor who had used diligence, by Horning, or otherwayes after the Minute, though be­fore the Disposition: because it may be alledged, that in this case, the Credi­tor cannot be said to have been voluntarly preferred by partial favour, as the Act bears, For that cannot be called voluntar, to which the Disponer might have been com­pelled. And in this case, as well as in Re­ductions, ex capite Inhibitionis, these Dispositions which depend upon necessa­ry Causes, are drawn back, ad suam cau­sam. But the doubt may be greater, if the cause upon which the Disposition de­pended, had no specifick obligation in it, to grant the deed quarrelled, but on­ly a general obligation, v. g. If Titius should only be oblieged by a Minute, to Dispone Lands to Mevius; if Titius thereafter be­ing put to the Horn, at the instance of [Page 151] Sempronius, should after he was put to the Horn Dispone Lands to Mevius; it may be doubted whether that Disposition would be Reduceable, since the Minute did not bear an express obligation to Dis­pone the specifick Lands afterwards Dis­poned, but only to Dispone Lands in ge­neral: for it may be alledged, that quo ad these Lands, the Right was voluntar, seeing there was no specifick obligation, quo ad these. And if such a Disposition as this might be sustained, all Dispositi­ons, though made for onerous causes, might be sustained,

Notwithstanding of all which, I con­ceive, that by voluntar Rights and pay­ments in this Paragraph, are understood all such Rights and Payments, as are made without any previous diligence, though the Debitor could have been com­pelled to make them; and though there be a preceeding cause, whereupon the De­bitor might have been forced, to make the saids Rights and Payments, and so are necessar, quo ad the Debitor, if other Creditors had not been concerned; yet they are accounted voluntar, as to this [Page 152] Act and Statute, because the Debitor having other Creditors, who might have compelled him as much as the Creditor whom he has satisfied: Yet he voluntar­ly prefers and gratifies him in prejudice of their diligence. And even in the case here instanced, of a Minute bearing an ob­ligation to dispone Land, if the Dyvour should after the diligence of other Credi­tors Dispone, that Disposition would be construed a voluntar Right, which the Bankrupt ought not to have granted in prejudice of his other Creditors, who had done diligence, and who might have affe­cted the same Land, if the Disposition had not been made; notwithstanding of the personal obligation contained in the Mi­nute. And it cannot be deny'd, that there is a great difference betwixt a Debi­tor inhibited only, and a Debitor Bank­rupt: for a Debitor who is inhibited, Disponing what he was bound to, by an obligation prior to the Inhibition, do's not contraveen the command of the Inhi­bition, which only forbids him to do any new deed, to the prejudice of the Inhibi­tor. But a Bankrupt not being able to [Page 153] satifie all his Creditors, does contraveen this Law, in gratifying one, to the prejudice of others, and to the prejudice of diligences done by them. Especially since he could not have been compelled in Law, to prefer the Creditor who had done no dilligence.

It may be observed, that though vo­luntar Dispositions be only quarrelable by this part of the Act, at the instance of Creditors who have done diligence; yet, Dispositions made by notorious Bank­rupts, are even quarrelable at the instance of Creditors who have done no dilligences. But in this case, the Disposition so made, is not absolutely reduceable, but is only reduceable to the effect the Creditors may have accesse to the Estate, not to affect it simply, for the whole summe, but to put them in the same case, as if the Disposi­tion had been granted to them all, for payment of their summes, conform to their dilligences: and the ordinary quali­fications quo ad this part of the Act, are, either that he was in meditatione fugae, or that he was in the Abbay, or in Prison, or that there were very many Hornings, [Page 154] and dilligences against him: And therefore on the 18. December 1672. The Lords sustained Action upon this Act against the Laird of Kinfawns, at the instance of Tarsappies Creditors, though the Dispo­sition made to Kinfawns, was made for the payment of the lawful Creditors; and that because Tarsappy the time of the Dis­position, was fugitive in the Abbay, and that his Debt did exceed his Estate, and that it was a Disposition omnium bono­rum, made to an Uncle, though the Creditor here had done no diligence.

Though this Clause bear generally, that Dispositions made in prejudice of such as have done lawful diligences, by Inhibi­tion, Horning, Arrestment, or Comprising, shall be quarrelable: Yet it may be justly doubted, whether these words must be so interpret, as that any of these dilligences shall be a sufficient ground, promiscuously to quarrel any Disposition: So that the Law considers not so much the nature of the dilligence done, as the Partial favour, and gratification of the Dyvour, or confi­dent who has done no diligence, and the pre­fering him to one who has done diligence, [Page 155] though that diligence was not perse▪ pro­per to affect. For if it had affected pro­perly, there had been no necessity for this Act, or Statute, v. g. If the Creditor had inhibited, the Debitor could not have thereafter disponed in prejudice of that Disposition, but the Disposition would have been reduceable ex capite Inhibitio­nis. But if the Creditor not knowing that the common Debitor had Money lying by him, that could be affected with Ar­restment, did ommit to Arrest, but did inhibite, it appears, that if the Debitor should, to gratifie and prefer a Creditor, who has no diligence, give him that Mo­ney, this Law and Statute intended, that the Creditor who has done diligence by Inhibition, should not only have liberty to reduce all Dispositions ex capite Inhi­bitionis: For that was competent before this Law, but that he should have con­dictionem ex hac lege, to recover that Money; though the Inhibition be no pro­per way to affect it. And yet upon the other hand, it would seem absurd, that the using of an Arrestment should be a suf­ficient ground for the user to quarrel a [Page 156] Right made of Lands, for that were vi­tiosa transitio, de genere, in genus. But as in all general Clauses, so in this, the application must be, singula singulis: and therefore if after a Creditor has used any real diligence that may affect Land, such as Inhibition, or Comprising, his Bank­rupt Debitor, shall to disappoint that diligence, dispone his Lands to a Con­creditor, who has done no diligence; then the Inhibiter or Appryser, may quarrel that Disposition; or if a Creditor has af­fected any of his Debitors summes, by Horning, or Arrestment, and if to dis­appoint that diligence, the Bankrupt De­bitor should dispone upon his Moveables in favours of a Con-creditor, eo casu, that Disposition to the Moveables might be quarrelled by him who has used Horn­ing, or Arestment: which are diligences proper to affect Moveables in our Law. Which may be further urged, by these reasons, 1. Because Inhibitions and Comprisings are not proper diligences to affect Moveables, no more then Arest­ment or Horning can affect heretage: and the Law never priviledges a diligence, [Page 157] except where the diligence could affect. 2. The reason why the Law Priviledges such Creditors as have used these diligen­ces, is, because the Law presumes they might have affected the Bankrupts Estate by these diligences, and because it pre­sumes that the Debitor dispon'd his Estate, to disappoint that diligence. But so it is, that neither could Inhibitions affect Moveables, nor can Arrestments affect he­retage; nor were these Dispositions made to disappoint such diligences, and there­fore, &c. 3. When men are to buy Land, thy look only the Registers for Inhibiti­ons, or Comprisings, but they never consider whether there be any Arestments used against the Seller. 4. Though this part of the Act be conceived in favours of Creditors, who have used Inhibition, Horning, Arrestment, Comprising, or o­ther lawful diligence; yet this Clause must be so interpret, that the meer raising of an Inhibition or Horning is not sufficient ex­cept the Inhibition or Horning be exe­cute, as was found February, 1671. in the Case betwixt Tynet, and Grahame of Creigie. For the Act of Parliament men­tions [Page 158] serving an Inhibition, and using a Horning, and not the raising of either▪ But yet if the Bankrupt to disappoint his true Creditors, who have raised Letters of Inhibition, Horning, or Arrestment, should collude with his other Creditors who know the raising of these Letters, and they by express collusion, should make and receive such Dispositions, I conceive these Dispositions may be quar­relled upon this part of the Act, though the Letters were only raised; for else the Act might be absolutely disappointed, and im­mediatly upon the raising of the Letters, such Dispositions might be made, and the Creditor who did exact dilligence, & omne quod in se erat, should be prejudged by fraudulent conveyances, and by the ni­mious diligence of his cheating Debitor. Nor should the fraud of a Creditor, receiv­ing such Dispositions, be of advantage to the Receiver, nam nemo debet lucrari ex suo dolo.

But it is more difficult to resolve, whe­ther a meer charge of Horning, without denounciation, be a sufficient diligence to make all deeds after the charge to be quar­relable [Page 159] upon this Act. And it may be alledged, that to charge upon the Horn­ing, is to use a Horning, which is all that this Act requires. 2 The charge is pro­perly the diligence, for thereby the De­bitor is commanded under certification, that he will be denounced; whereas the denounciation is but the effect of the dil­ligence: and the Debitor is denounced, because he did not obey. Which reasons incline me to believe, that the charge without denounciation, is a sufficient dil­ligence in this case, and for the same rea­son, I believe that a personal charge upon an Inhibition, would operate the same ef­fect, though the execution were not used at the Mercat Cross; because that is only necessar to put the Liedges in mala fide, in order to a Reduction ex capite Inhibitionis.

And I conceive likewise, that the In­hibition being lawfully served, though not registrat, would be sufficient quoad the effect designed by this part of the Act, for the Registrating an Inhibi­tion is different from the serving of it; and the serving of the Inhibition is all that this Act requires: And if the Cre­ditor [Page 160] may reduce ex capite inhibitionis, before it be Registrat, if it be once serv­ed, that is to say, lawfully execute, much more should the execution of it, without Registration, be sufficient as to this Act.

It may be likewise observed, that though this part of the Act, must be so interpret, as that proper and peculiar dil­ligences may only affect; that is to say. Arrestment Moveables, and Comprysing Heritage: yet even in that case, Horning may be accounted a sufficient dilligence, after the using whereof, the Debitor be­ing a Dyvour, can neither Dispone Heri­tage, nor Moveables, to the prejudice of the Creditor, who used the Horning▪ for a Horning is not only a dilligence that may affect Moveables, but it is like­wise a step in dilligence, necessary, previous in many cases to Comprysings, which are real dilligences.

By these words any other mean, is to be understood other Lawful dilli­gences, beside Inhibitions, Hornings, Ar­restments, Comprisings, here exprest. As for instance, if a Creditor should raise a Pre­cept [Page 161] of Poynding, and should charge his Debitor thereupon, to disappoint which, the Debitor should Dispon his moveables to another Creditor, the raiser of the Pre­cept might quarrel that Disposition upon this clause of the Act. 5. It is observable, that though in the first part of the Act, after the Law has declared all deeds done by Bankrupts, in favours of their Credi­tors, without an onerous cause, to be null, yet it subjoyns immediatly in another clause, that if a third party shall bona fide acquire a right to these fraudulent rights, these rights shall not be quarrellable in their person, except they were likewise partakers of the fraud. But here where the Law, in this clause, declares, that where diligence is done by a Creditor, the Debitor cannot thereafter in his preju­dice; prefer another who is a Con-credi­tor, and Dispone the Land to him, though even for an onerous Cause. Yet the Law has not determined, whether if this Dis­position made to a Con-creditor, shall be quarrellable in the Person of one, who bona fide has acquired that Disposition from [Page 162] the Con-creditor, in the same manner as if it would have been quarrelable in the Person of the Con-creditor himself. And though it may be alledged, that the clause subjoyned to the first part of the Act, in favours of third parties, ought to be re­peated here, for singular Successors in this case, not being partakers of the Fraud, ought not to be prejudged: yet if we con­sider the case somewhat inwardly, we will find that a Disposition made by the Bank­rupt to a Con-creditor, and by the Con­creditor to a third Party, is quarrellable in the third Parties Person. For the Con­creditor could make no better Right nor he had himself; and there being jus quaesitum to the Creditor by the dilligence, so that he might have quarrelled the Right made to one of the Con-creditors, by the com­mon Debitor. This Right could not be evacuated by any Disposition, that the Con-creditor could make, and if it were otherwise, the Creditors diligence might be easily eluded, and disappointed: for the Con-creditor finding that the Right made to him was quarrelable, he might still trans­fer his Right to a third party, and there [Page 263] was great reason why the Clause con­ceived in favours of third parties in the first part of the Act, annulls only deeds, because made fraudulently; and therefore this nullity ought not to have been ex­tended against third parties, who were not participes fraudis, for there deficiebat ra­tio legis: But this Clause of the Act an­nuls not these deeds upon any personal ac­count, but because these deeds are con­trary to diligences done by a lawful Credi­tor. And therefore the nullity here ought to be extended quo-ad all▪ because to whom­soever such Dispositions were transfered, they remain still to be deeds done in preju­dice of diligences done by a lawful Creditor. And so the ground of the nullity here be­ing real, it ought to be extended to all. But if after the Right is setled in the per­son of the confident, diligence be done against the Dyvour, which the pur­chaser from the confident, neither doth, nor is obliedged to know: he is in bona side to acquire, and his Right cannot be que­stioned upon pretence of diligences, as be­ing real, & quae afficiunt fundum, in re­spect the diligence is not against the per­son, [Page 164] who stands in the Right, but against the Author who was denud­ed.

Though the former conclusion holds in Disposions of Lands, yet it may be doubt­ed, whether it should likewise [...]hold in Moveables, and it seems very prejudicial to, and destructive of all Commerce, that a third party buying bona fide Move­ables, should be quarrelled for them: be­cause though they past throw many hands, and were bought (it may be) in a publick Mercat; yet they were originally Dis­pon'd by a Bankrupt, to a Con-creditor, in prejudice of another Creditors lawful diligence; and if this were allowed, no Person could be in bona fide, or in tuto, to Buy or to Trade.

Upon this part of the Statute, may be raised this other doubt, viz. a Creditor comprises, and thereafter another Credi­tor gets a Disposition for payment of his Debt, and is Infeft. And last of all a third Creditor Comprises, and is Infest. The first Creditor who had Comprised, intents Reduction of the Disposition made to the second Creditor, as made after he [Page 165] had done diligence: in which Reduction the second Compriser compears, and de­sires to be preferred, because he is Infeft before the pursuer, though the first Com­pryser: and so would be preferred to him. And since qui vincit vincentem [...] me, vincit & me; it follows clearly, that since the second Compryser would be pre­ferred to the first, that thereafter he ought also to be preferred to the Creditor, who had got the Disposition, because the first Compryser would be preferred to him who had got that Disposition. It is an­swered, for the pursuer who is the first Compriser, that he must be preferred, and the Disposition made to the second Creditor must accress to him, because he had done diligence before his Disposition; and by this Statute, a Creditor to whom a Disposition is made in defraud of a true Creditors diligence, is oblieged to make his Right forth-coming to the Creditor who has done diligence; whereas that Disposition would be preferred to the se­cond Comprising, though Infeftment had not followed upon that Comprysing; be­cause no diligence was done by that Com­pryser, [Page 166] when the Disposition was made, nor could the second Compryser be prefer­red; because he Comprysed only all Right that was in the Person of the Debi­tor: but so it is, that the Debitor was denuded, by the Disposition made to the Creditor or Trusty. And I think the first Compryser would be preferred; for this part of the Statute, ordains not the Dis­position to be null, and not to prejudge the Creditors doing diligence, which if it had only done, the second Compryser would have been preferred; but it ordains the Right made to the other Creditor, in prejudice of the diligence, to be forth­coming to them who did diligence, as said is. It is here also observable, that if the Creditor who got the Disposition, had not been Infeft, the second Compryser had certainly been preferred, for he had the first real Right: nor had the De­bitor been denuded by the Disposition.

As to the argument, qui vincit vincen­tem me, vincit me. It may be answered, that this Brocard receives many restricti­ons; amongst which one is, that if he qui vincit me, use a priviledged way for pre­vailing [Page 167] against me, which is not compe­tent against another, then potest vincere me, & tamen non vincere vincentem me. And in this case we know, that there is a special priviledge given by this Statute, to the Creditor who does diligence: and by vertue of this priviledge, the first Compryser prevailes here. And this leads me to another doubt in our Law, which is very considerable.

There are three Creditors, whereof one has raised, and served an Inhibition: The second Compryses for debts, and upon Bonds posterior to the Inhibition, and is Infeft. The third Compryses also for debts prior to the Inhibition, and is also Infeft. The Inhibiter intents a Reducti­on, ex capite inhibitionis, against the first Compryser, and reduces his Right; and thereafter the Inhibiter Compryses also, and being Infeft, he compets for the Mails and Duties with the second Compryser, and craves to be preferred to him, because he has prevailed against the first Com­pryser who would have been pre­ferred to him, he being but a second [Page 168] Compriser, & qui vincet vincentem, &c. 2. The second Compriser comprised from a person who was denuded, in swa far as the first Compriser denuded the Debitor by his comprising, whereupon In [...]e [...]t­ment followed. But on the other hand, it may be urged for the second Compriser, that the Inhibiter prevai [...]ed only against the first Compriser by vertue of his Inhi­bition, which did sweep away the po­sterior Debts, whereupon that first com­prising was founded. But as to his Debts, whereupon he led the second comprising, they were Debts contracted prior to the Inhibition, and so were not liable to a Reduction ex eo capite. And as his Debts could not be quarrelled by this Compriser▪ so his real Right was also preferable to his, he having a prior Comprising, where­upon In [...]eftment followed.

As no Bankrupt can prejudge his Cre­ditors, who have done diligence, by prefering one of them to another: so nei­ther can he make a Disposition to any confident person, with power to him to pay the Debt due to himself in the first place, and his Creditors in the next place, [Page 169] two instances whereof I remember lately decided. The first was, the 8. of Janu­ary 1669. the case whereof was this, The Laird of Craigmiller being Debitor to Mr. John Prestoun his Brother, did dis­pon him his Estate for payment of his Debts particularly therein related; with power to the said Mr. John to pay any of the Creditors he pleased. And Mr. John being Infeft upon that Disposition, there was a competition for the Mails and Due­ties, betwixt Mr. John, and Captain Newman, who was one of the Creditors contained in the Disposition: In which Competition, Captain Newman craved to he preferred, notwithstanding of that Disposition granted to Mr. John, because the Disposition granted to Mr. John, was granted to the behove of the said Cap­tain his Debt, being one of the onerous Causes therein exprest. To which Mr. John answered, that he had power by the same Disposition to prefer any of the Creditors he pleased, and that the value of the Land was now exhausted by pay­ment made to other Creditors: To which it was duplyed by Newman, that this Dis­position [Page 170] was fraudulent, and reduceable upon the Act of Parliament 1621, for as Craigmiller himself could not prefer any to the prejudice of him who had done dili­gence, so neither could he bestow that faculty upon any other. To which it was answered, that Craigmiller might have dis­poned his Estate to any person he pleased, for an onerous Cause, before Captain Newman did diligence. But so it is, that at the time of this Disposition, Newman had done no diligence. 2. This Dispo­sition at least ought to be sustained, in so far as Craigmiller was Debitor to Mr. John, either for Debt due to himself, or for relief of Cautionry. To which answers, it was replyed, that quo ad the first, it was not relevant, because though the Disposition was prior to the diligence done by Newman: yet the said Newman had done diligence, before payment made to any others of the Creditors; and con­sequently before the preferrence. Where­as by the forsaid Act, no Creditor could be preferred after diligence. And to the second Branch of the answer, it was re­plyed, that though Craigmiller could have [Page 171] disponed his Estate to Mr. John, for his payment, or relief, expresly before New­mans diligence; yet that was not done in this case: for this Disposition was only made in general termes, for payment of Craigmillers Debts generally, and Mr. John had no advantage over others there­by, but in swa far as he had by preferring himself by vertue of the forsaid Clause, which was unwarrantable. And so the Disponers deed quo ad him, was null; Be­cause quod sacere potuit non fecit, & quod fecit, sacere non potuit. Upon which de­bate the Lords preferred Mr. John only in swa far as concerned his own Debt, or Cau­tionry: but sustained not the preferrance, in swa far as concerned other Creditors.

The other Decision was the 24. July, 1669. in which Young craved a Dispositi­on made to Anderson, by Fleming, to be reduced, as done in his prejudice, he be­ing a Creditor who had inhibit, and Com­prised. It was answered by Anderson, that he had granted a Back-band, declar­ing that the Disposition was in Trust, for payment of the Debt due to Anderson himself. And in the next place, for pay­ment [Page 172] of Flemings Creditors: and sub­sumed, that he had payed as many Cre­ditors as would exhaust the price, which he was in bona fide to do, there being no di­ligence against him; nor could he be pre­judged by any diligence against Flem­ing, Fleming being denuded, as said is.

To which answer it was replyed, that Anderson being but a Trustee, was fictione juris, in the same condition with Flem­ing; And as Flemnig could not disap­point him, as a lawful▪ Creditor; so nei­ther could Anderson his Trustee: And if it were otherwise, the diligences of law­ful Creditors might be rendred elusory, for the Debitor who resolved to disap­point the diligences of his Creditors, might still dispon his Estate to a Trustee; which Trustee, and Trust, the Debitors not knowing, they could not know against whom diligence was to be done. Likeas, in Law, this power to prefer Creditors, be­hoved to be interpret legittimo modo, & interminis habilibus: so that the Credi­tors could not be disappointed, but that they should be preferred according to their [Page 173] diligences, as they behoved to have been by the Debitor himself. In respect of which reply; the Lords preferred the Cre­ditors, and found that voluntar payment made by the Trustee, could not prejudge the Creditors who had done lawful dili­gences, by voluntar payment. But the question here remains; whether if any of the Creditors had Arrested in Andersons hand, as Trustee, and had pursued an Action to make forth-comming against him: If in that case, Anderson was oblieg­ed to give in a qualified Oath, bearing that he was Trustee, but that there was other Creditors who had done more time­ous diligence; or if he ought to have called the Creditors, who had done more timeous diligence, as said is.

This Act is only conceived in favours of such as were Creditors, to those who granted such Dispositions, prior to the deeds contraverted. But argumento hu­jus legis, and upon the same reason of equity, the Lords constantly sustain De­clarators at the instance of Creditors of the Father concluding any Right, made even by strangers, to Children in familia, to [Page 174] be null, as being granted to their prejudice, without an onerous Cause, or as being acquired by the parents means. Which presumptions are never otherwise elyded, then by alledging, that the procurer had an Estate aliunde, whereby he might have procured the Right contraverted. As for instance, Sempronius being Debitor to Mevius, dispones not his Estate to his Son, but acquires an Estate in his Sons name from a stranger, this Disposi­tion so acquired, can never be quarrel­led by Mevius, the Fathers Creditor, by way of Reduction, For the effect of a Reduction is nothing else but the annulling of the deed, and the taking it out of the way, or the bringing back of the Estate dispon'd, to the same condition it was in before; which would not be sufficient in this case, because the Estate which the Creditor desires to affect, was never in the Debitors person. And therefore it is ne­cessary for the Creditor to raise a Declara­tor, wherein he must narate, that Sem­pronius being Debitor to him, did fraudu­lently acquire the Right of such and such Lands, in his sons name; and which must [Page 175] be presumed to be acquired by the Fathers Estate: because they were acquired by a Son in familia, who is presumed to have no Estate, but what he derives from his Fa­ther, or else he must Lybel, that though the Disposition be procured by a Major, who is foris-familiat, and Trafficking up­on his own account, the same was truly acquired by the Debitors means, and the Disposition only acquired to be a colour­able Title to disappoint his Debt. There­fore concludes, that the said Estate so bought, may be declared lyable to his Debt, in the same manner, as if the Disposition had been taken in his Debitors name.

The Common Law, and ours, does not on­ly reprobate Dispositions, made by Debi­tors: in meditatione fugae, but both the one, and the other of these Laws, do likewise allow the summar apprehending of Credi­tors, who are suspected to be Bankrupts. And by our Law, though a man cannot be regularly Imprisoned for Debt, without Letters of Caption be formerly raised; Yet in Masons case, the 5. November 1665. The Lords summarly, up­on a Bill, issued out a warrand to ap­prehend [Page 176] him, tanquam Debitorem suspectum, & fugitivum. And though at first they doubted, whether their own power could extend this far, yet thereafter they found that it might: since even the Admiral grants such warrants, and yet there may be some speciality quoad the Admiral since the nature of his Jurisdiction allowes a ve­ry sumar procedor: and since this his Ju­risdiction is ordinarly exercised over Per­sons, who have an easie way to con­vey themselves out of the Countrey, and are ordinarly very little fixed to one place.

But because this may open a door to great Arbitrariness, and may afford great occasion of prejudging the Leidges, since upon this pretext, Merchants may, whilst they are going about great bargains, and others about urgent, and necessa­ry affairs, be laid up in Prison upon this account. It will be fit to consi­der, what the common Law, and Law­yers have delivered as their opinion in this Point.

Lawyers distinguish inter fugitivum, & suspectum de fuga, the one is guilty on­ly [Page 177] of an Intention, but the other has actu­ally fled. And I conceive, that medita­tio fugae, so much considered by our Law, is a midst betwixt those two, for he who is in meditatione fugae, has cum suspecto designed a flight, and has cum fugitivo, done some extrinsick deed in order to his flight.

He who is suspect, or fugitive, may be apprehended by the common Law, summarly by any Judge, who can cite that Person before him, qui potest recitare, id est personali coercitione coercere Debito­res, they may be also apprehended by a Judge otherways incompetent: and he that is taken by an incompetent Judge, cannot object the incompetency. For as Lawyers observe, these Debitors who are Fugitive, or suspect of flying, may be apprehended by warrands, direct either by incompetent Judges, or by warrands direct in incompetent times, such as are vacand times, or holy dayes, gloss in l. si super C. de feriis. verb. [...]ideijussionis▪ But with us, no Inferiour, much less can incompetent Judges; can give such [Page 178] warrands. And it has been expresly de­cided, that an Arrestment laid on, even upon a Bankrupts Goods, by an incom­petent Judge, was not valid, 5 Decem­ber 1671. where the Arrestment was laid on in Pasley, by vertue of an Decreet obtained before the Bailie of Cunninghame, and so was found null, as extra districtum. Albeit the Bailie of Cunninghame, was alsò Sheriff of Renfrew, within which Sheriffdome Pasley lyes.—Lawyers are likewise of opinion, that the Creditor may apprehend one who is Debitor, if he find him actually fleeing: for fleeing in this case, is a kind of cryme. But if the flyer be not a Debitor by express Con­tract, he cannot be apprehended by the Creditor without a warrand, except ei­ther a Judge cannot be had, or that he be fleeing with the Debitors Mo­ney, Ang. in l. extat. ff. quod met. caus.

He who craves a warrand, to take a Debitor who is suspect, or fugitive, must lybel to the Judge, reasons why he sus­pects his fleeing, as that he was packing [Page 179] up his Goods, or was lurking, or deny­ed himself when his Creditors were seek­ing him. And though by opinion of the Doctors, none who has an immoveable, or Land Estate, can be thus proceeded against, because it is presumed, he will have so great care for his Estate, as not to leave it: and because his Land Estate is alwayes a biding cautioner: yet if either the Land Estate be very small, or if it be affected with diligences that may exhaust it. I think that in these cases, such He­retors can have no priviledge, nor are thir summar warrands ever allowed to such as become voluntarly Creditors, after the Debitor was suspected; for these ought to blame themselves, who trusted a Per­son in that condition: but it is otherwise if they became Creditors ex delicto, vel quasi delicto: as for instance, if after he was suspected; he Robe, or Wound, or commit any Ryot. For in that case, he who becomes so, his Creditor may have such a warrand for apprehending him; and these warrands are granted, not only for pure and liquid Debts: but even for [Page 180] conditional Debts, and for Debts whereof the termes of payment are not yet come; and though the Debts be small, except they be very inconsiderable, Cacia-lup. tract. de debit. susp. quest. 3.

Finally, the Lords declares, all such Bankrupts, and Dy­vours, and all Interposed Persons, for covering, or executing their brauds; and all others, who shall give Council, and wilful assist­ance unto the said Bankrupts, in the devising, and practi­sing of their saids Frauds, and [Page 181] godless deceits, to the preju­dice of their true Creditors, shall be reputed, and holden dishonest, false, and infa­mous Persons, incapable of all Honours, Dignities, Be­nefices, and Offices; or to pass upon Inquests, or As­sises, or to bear witness in Judgement, or out-with in any time coming.

FOr the better understanding of this part of the Act, concerning the pu­nishment of Bankrupts, and of such as advise, or assist them. It is fit to observe with the Civilians, that [Page 182] Bankrupts, and Dyvours, are either such as are become insolvendo by their Misfortune, rather then Fault. And quo ad these, because they were guilty of no Crime, therefore no Corporal Pu­nishment was appointed for them by the Law, omni corporali cruc [...]atu re­moto saith l fin. Cod. qui. bon. ced. poss. Nor does Infamy follow them, No­vella; and therefore this clause of the Act, cannot be interpret of such Bank­rupts: and though the clause be ge­neral, without distinguishing Bankrupts: and that it might be therefore alledg­ed, that ubi lex non distinguit, nec nos. Yet general Lawes must receive their restrictive Interpretations from the Common Law. And since the design of this Act, was (as is very clear by the Narrative) to prevent, and pu­nish Frauds and Cheats; it is just, that these general clauses should not be ex­tended beyond the express scope, and de­signe of the Act.

The second kind of Bankrupts menti­oned in the Law, are these; who only by [Page 183] their own fault become Bankrupts: qui suo vitio fortunas conturbarunt. And the third kind of Bankrupts, were such, as became Bankrupts, partly by their own, and partly by the fault of fortune. And both these last kinds of Bankrupts were denyed the benefit of a cessio bonorum, nam hoc est miserorum subsidium, sed non presidi­u [...], dolosoruml. sin. h. t. & l. pen. ff. de jur. Dot. And with us, the Bankrups of both these Classes are denyed the benefit of a cessio bonorum, except they wear the Habit: though such are spared from it; whom for­tune without their own fault, has thrown into the necessity of seeking that miserable remeed. Nor does the granting of Dispo­sitions that are reduceable upon this Act still infer infamy, for if a man grant a Disposition, whereby one Creditor is preferred to another who has done dili­gence, that Disposition would be reduce­able, and yet if there remained as much as might have payed all the Creditors, that Disposition could not infer infamy. And by this Act, such only are declared infam­ous, as are guilty of fraud, and Godlesse devices.

[Page 184]Such as give council are lyable to the pains of this Act, which is likewise con­form to the opinion of the Civilians, vid, Strach. de decotor: But they distinguish be­twixt such as gave council, or advice to those who were resolved before to cheat their Creditors; and some Doctors do conclude, that such advisers, are not punishable, because the Bankrupt follow­ed not here the advice of another, but his own inclination. And this opinion was first sounded upon the Gl [...]ss. inst. de oblig. que ex de lict. §. ope, but others do more reasonably conclude, with Dynus ad reg. nullus de reg. jur. l. 166. That the advice is equally punishable, whether the Bankrupt was resolved to follow that advice, or his own inclination: Because the adviser did here all that in him was, to transgresse the Law, others distinguish thus, either (say they) the principal of­fender designed only to have cheated a Bankrupt, but delayed till he got advice, and then the adviser is equally punishable with the principal, because there, the transgression was imputeable chiefly to the [Page 185] Adviser: Or else the principal Adviser had begun to defraud and cheat his Creditors; and the advice did but interveen, and was but supervenient: And then the Ad­viser is not equally punishable, espe­cially where the contrivance is not other­wise probable, then by meer presump­tions.

Wilfull assistance also in devising or practising these frauds, is also punishable by this Act, under which Lawyers com­prehend such as transact betwixt the Bankrupts and interposed persons, such as lend him Horses to flee, if they knew his design, and such as carry the Goods of the Bankrupt, or such as rescue him when he is apprehended, or stop his be­ing apprehended, Strach. de decoct. part. 2.

The punishment appointed by this Act, is, that they shall be repute false persons: By which is not meant, that they shall be punished tanquam falsarii, but as cheats for cheating is a species of false­hood. And yet if a Bankrupt did call himself by the name of a Rich Merchant, [Page 186] thereby to get Credit: or if any treated for him under that name, I conceive they might be pursued tanqnam falsarii, and and might be punisht accordingly.

They are also declared uncapable of all Honours, or Dignities, and Offices, which are not distinct punishments from infamy, but are the natural consequences of it. For whosoever is declared infamous, is eo ipso uncapable of all Honours, Dig­nities, and Offices.

They are also declared uncapable to pass upon Inquests, or Assyses. But this was also unnecessary, for Assysers have a mixt imployment, and without being ei­ther Judges, or Witnesses, are both, and as to their capacity of Judges, they fell un­der the foregoing Clause, whereby all Bankrupts and their assistants are declared uncapable to be Judges. And as to their capacity of being Wit­nesses, they fell under the subsequent Clause, whereby such are likewise debar­ed from being Witnesses. And I believe the reason why they were specially debar­ed by this Act, was because our Law [Page 187] looks upon Assysers, as having an imploy­ment distinct, and differing from either a Judge, or a Witness, and medium par­ticipationis, betwixt the two. Though regulariter, in our Law, whatever de­bars on from being a Witness, debars him likewise from being an Assyser. And there is no surer legal topick with us, then an Argument drawn from a Witness, to an Assyser: And yet argumento hujus le­gis, an Assyser may be concluded diffe­rent from both Judge, and Witnesse, and medium participationis, betwixt them.

Bankrupts, and their assisters are like­wise by this Act, declared uncapable to be Witnesses, and the reason of this exclu­sion certainly is, because the Law consi­ders such as have cheated Creditors, as persons who would be ready to cheat Judges; that such as have been dishonest in their own Affairs, will never be honest in the Affairs of other men.

And whereas this Clause, debars them from being Witnesses, in-with, or out-with Judgement, by Witnesses out-with Judge­ment, [Page 188] are meant Witnesses in Writs, as Bonds, Seasings, &c. But yet it may be doubted, whether in Bonds, or such like Writs, this can take place: For there, the Witnesses are presumed of Law to be admitted of consent, which excludes all objections against Witnesses; and therefore a mans servant, or brother, cannot be received judicially as Witnesses for him; yet they may be, and are su­stained as Witnesses in Bonds granted to him. Nor did I ever hear, a Bond, Seas­ing, or any other Writ, reduced upon this head, viz. That it had only two Witnesses; one whereof was uncapable to be a Witnesse, because he was found by the Lords Decreet to have either granted fraudulent Dispositions, or to have been in accession thereto, except he was declar­ed expresly infamous by the Lords sen­tence, as Mason was. Though such an ob­jection seems well founded upon this Clause of the Act.

Not only such as defraud Creditors, are declared infamous by this Act, but even in Declarators founded upon the Common [Page 189] Law, the persons guilty will be declared infamous; as was found in Masons case: And though it was aledged, that infamy could not be inferred without an expresse Law; yet it was found that this Act im­powered the Lords, to decide conform to the Conmon Law in like cases, & à paritate rationis, and he was thereupon declared infamous.

I have reserved to be debated in this last place, whether by vertue of the last Clause of this Act, whereby the advysers of frauds are to be punished: An Advo­cat may be examined upon his having given advice to his Client, to defraud his Creditors: or whether he may be examin­ed against his Client, who in consulting with him, and taking his advice, has made him as his Advocat, privie to the fraud he has committed. And because these questions are of universal conse­quence, I am resolved to consider them in general termes, both with, and without relation to this Act. For if Advocats may be forced to depon against them­selves, or their Clients in this point, or [Page 190] as to any other thing which is the subject-matter of their consultations, they may be as well forced in all things; for the parity of reason, and the publick interest being the same. I see not why if the Judge may lawfully force them in the one, he may not as well obliedge them in all other cases.

As to the first question, it would ap­pear, that an Advocat cannot be obliedg­ed to depon upon any thing which may bind a guilt upon himself, or which may defame him.

As to the next question, it would ap­pear, that it is the interest of the Com­mon-Wealth, to have the truth of all frauds and contrivances detected; and that he who conceals the truth, is as guilty as he who commits a falshood: But to such as attentively and judiciously con­sider, they may probably find them­selves enclined to the contrary opinion, by these considerations, 1. An Advocat, is by the nature of his imployment tyed to the same faithfulness that any Depo­sitor is: For his Client has depositat in [Page 191] his breast, his greatest secrets; and it is the interest of the Common-wealth, to have that freedom allowed, and secured, without which, men cannot mannage their affairs, and privat business: and who would use that freedom, if they might be ensnared by it? This were to beget a diffidence betwixt such, who should of all others, have the greatest mutual confidence in one another; and this will make ignorant men so jealous of their Advocats, that they will lose their privat business, or succumb in their just defence, rather then hazard the opening of their secrets to those who can give them no advice, when the case is half conceal'd, or may be forced to disco­ver them, when revealed. As for in­stance, a Client not knowing that he can be defended against an pursuit for murder, by proving it was committed in self-defence, will conceal from his Advocat, that he killed at all, least his confession, and his Advocats testi­mony, might be made use of against him. 2. This might afford to Advo­cats [Page 192] great matter of prevarication, and might occasion much prejudice to the Clients, for an Advocat having dis­covered the weakness of his Clients Cause, might discover it likewise to his adversary: and to cover his preva­rication, he might suggest to his said adversary, that he might be examin­ed, and so impute the discovering of these secrets, to the cogency of the Law, and not to his own privat incli­nations, which made Rob. Annaeus say, that si tamen de inceps, Advocato liceat, Clientium secreta pandere, & causarum arcana fidei suae commissa, palam & pub­lice proferre eaque parum fido pectore effu­tire. In foro deinceps, non equitatis cognitio, sed latrocinium exercebitur: tri­bunalia murices erunt, quibus litiganti­um simplicitatem undi (que) circumvenire, & imputare licebit. & in judicio, non tem­plum [...]hemidis, sed spoliarium erit, si clientes tacita confessionis side captare, & irretire permittetur. Whereas now, if a Clients secret be discovered, he can blame no man but his own Advocats, [Page 193] who are by their honour and interest, oblieged to keep up a secret, whose discovery can be ascribed to none, but them. The designe of all Probation is to convince the Judge, whereas because of the great Relation that is betwixt an Advocat, and his Client, Law and Experience cannot but presume, that hardly Truth can be discovered this way. And this way rather opens a door to lying, or gives occasion to fallaci­ous, and ambiguous concealing of Truth, then helps the discovery of it. Upon which account, the Law has shunned to force men to depon against themselves, or Husbands against their Wives, or Children against their Parents in Cri­minal cases. And therefore Virgil equals those two, pulsatusve parens, & fraus innexaclienti. Upon which place, Ser­vius observes that Clientes, quasi co­lentes, Patroni, quasi patres, tantundem ergo est Clientem, quantum filium falle­re: and such was the respect due to Clients, that the Law allowed less li­berty in deponing against them, then [Page 194] against Blood Relations: and thus M. Ca­to is brought in, by A. Gell. saying, ad­versus cognatos pro cliente testatur, testi­monium adversus clientem nemo dicit. And the Law has still been rather in­clined to evite the hazard of Perjury, then to follow too far the Interest of the Common-wealth; or of private Parties, since God Almighty suffers by the one, and men only suffer by the other. 5. The Law L. nimis grave C. de testibus, tells us, that Mandatis cavetur, ut presides at­tendant, ne Patroni iu causa cui Patroci­nium prestiterunt, testimonium dicant. And though Bartolus, and some others do expon this Law, so, as if a Judge were thereby only discharged to admit an Advocat to depon for his Client. This Gloss seems to be most absurd, both because the words of the Law are general, and since they extend to both cases, and that no Posterior Law has re­stricted them, there is no reason why both should not be equally comprehended: As also, Laws are presumed to be made still against the more doubtful case; but [Page 195] that Advocats could have been received to depon in favours of their Client, was so clearly against the whole Analogy of Law, that there needed no special Law to have been made against that case: but there was necessity to inform Judges, whether Advocats could be forced to depon against their Clients: which gloss is approved by the learned Heraldus de Rer. judicatar au­ctor. lib. 2. cap. 4 And conform thereto, the Parliament of Paris did find in Decem­ber 1619. that an Advocat could not be oblieged to depon against his Client, for clearing of a Fraud, for which his Client was pursued.

By Justinians 80. Novel, cap. 8. It is appointed, that though witnesses may be forced to depone, both in Civil, and Criminal matters: yet those who had been imployed as Mediators, who are called there, [...], should not be forced to depone as witnesses, except both parties consent; for which no other reason can be given: but because the par­ties had entrusted their secrets to them. And accordingly the Senat of Savoy, de­cided [Page 196] the 23. November, 1596. as Fa­ber observes, lib. 4. tit. 15. def. 56. and the reason there given, is, solent enim qui litigant, agere liberius cum istis media­toribus, quasi cum confessore; & causae patrono. Then which nothing can be more convincing, Idem etiam in proxene­ta observavit papiensis in form. jur. test. num. 15. And in this the Cannon Law agrees with the Civil: for by Can. sta­tut. Caus. 2. quest. 6. It is ordained, that no Clergy-men shall be obliedged, or can be compelled to bear witness in a case which has been referred to him, by two Laicks. And therefore since that trust is held so Sacred, that the secrets even revealed to Arbiters, are not to be extorted from them, much less ought an Advocat, to whose patrocinie, his Cli­ents slee, and from whose faithfulness they seek protection, to violat that trust, and disappoint that confidence, sane id à Romana virtute, & animi magnitudine erat plane alienum. And how much se­cresie they allowed to witnesses, who had got any thing entrusted to them, is clear, [Page 197] l. 1. §. 38. ff. deposit. si quis tabulas testa­menti apud se depositas, pluribus presenti­bus legit, ait Labeo, depositi actione recte de tabulis agi posse, ego arbitror, & injuri­arum agi posse, si hoc animo recitatum testa­mentum est, quibusdam presentibus, ut ju­dicio secreta ejus qui testatus est divulga­rentur. Nor can there be a solid reason given, why Confessors cannot be forced to discover the secrets revealed to them, sub sigillo confessionis, And yet Advocats shall be oblieged to reveal what is con­signed to them, under the sacred assurance of Trust, and Secrecy.: Especially seeing that Law which is alledged against them, does acknowlepge them to be juris & ju­stittae Sacerdotes l. 1. ff. de just. & jur. Since the Common wealth is more con­cerned in the secrets of Affairs, then in se­crets of Devotion; and there are greater temptations to provoke the Trustee to discover the one, then the other: for few can have advantage by what a Confes­sor can reveal, but many could gain by that an Advocat can discover.

I must here beg leave to represent, that [Page 198] the rise of this great trust betwixt Clients, and Patrons, was, that first when Rome was founded, Romulus finding the error the Grecians had committed, in tyraniz­ing over their Clients, (whom the Athe­nians called [...], and the Thessalians [...], he did introduce a mutual Friend­ship and tye betwixt them. And as Aulus Gellius observes lib. 5. cap. 13. in officiis apud majores, ita observatum est, primum tutela, deinde hospiti, deinde clienti, tum cognato, postea affini. And as Dionis. halic. lib. 2. Ant Rom. observes, the Patron was obliedged, clienti jura in­terpretari, & lites pro eo suscipere. And this was common to both, that they could never accuse nor bear Witness a­gainst one another [...]. And on the Laws of the twelve Tables was, patronus si clienti frau­dem fecerit, sacer esto. So sacrilegious a thing was it then held, to reveal the Clients secrets: But thereafter this mu­tual dependence, and friendship, became so suspect to the Roman Emperours, that [Page 199] none were allowed to be Patrons, but Lawyers, whose power the Magistrates needed not suspect; and who were presum­ed to be men, so legal, and of such in­tegrity, that they would advice nothing, but what was just. And therefore, be­twixt these continued the Trust, and mutual assurance that was required be­twixt the old Patrons, and their Cli­ents. Though Advocats be now known to antequaries, for distinction, un­der the term of patroni secundarii.

Whereas it is urged, that it is the in­terest of the Common-wealth, that truth be discovered: To this it is answer­ed, that it is indeed the interest of the Common-wealth to discover the truth, as far as that can be done, in a conveni­ent and lawful way; for it is likewise the interest of the Common-wealth, not to unseal the secrets of privat persons, and thereby to render all Trust, and Commerce suspect. And notwithstanding of this Argument, the Law has exempted men from deponing against themselves, and against many others, who are enumerat, [Page 200] l. 4. ff. de testibus and of which we have very many instances in our Law. Rei publicae quidem interest, crimina impuni­ta non esse, sed rei publica quoque interest, pietatis & necessitudinis officia sarta tecta conservari, sine quibus nihil sanctum haberi potest, nec inviolatum. And Cicero lib. 3. de offic. does elegantly affirm, non igitur patria prestabit omnibus officiis, sed ipsi patriae conducit, pios cives habere. Advocats are persons whose Breeding obliedges them to admire Justice, as Musicians do Mu­sick, or as a man does that Countrey in which he lives; and they having given their Oath de fideli, at their admission, to give their Clients advice according to the Laws: they cannot be presumed to have advised any thing against the Law. And it is known, that they offend in this so infrequently, if at all▪ that it may seem fiter not to inquire into such cases, that seldom occure, then by inquiry to in­troduce a jealousie betwixt parties, who need such strict intimacy. And as no Gentleman is desired to divulge his friends secrets, much lesse should the Law re­quire this from Advocats, since it has [Page 201] obliedged them to imploy Advocats: and to entrust them with their secrets. And though men may be suspect, when they debate for their own interest, and ad­vantage, yet what interest can Advocats have here, save that of their Clients, for the Client and not the Advocat suffers by the discovery, and the Common­wealth being only a collective body of Clients; in effect the Common-wealth is prejudged, because Clients are prejudged. And though a Decision in the Parliament of Paris, be commonly alledged upon this point, 18. June 1580. in the case of one Barbine, yet all that was there decided, was, que l'advocat, & conseil, pourroit estre ouy par for me de tesmoinage. So that the Advocats have there been willing, but were not forced: And the parties objecti­ons were there reserved, for the Decision beares. Sauf a la partie, ses reproches: So that they were but examined before answer. Nor can an Advocat be thus said to conceal truth, since he is only said to conceal, who may be forced to depon. And if Clients know, that their Advo­cats [Page 202] may be forced to depon against them, they will keep their secrets, or propose their doubts under borrowed names; and thus the design of finding out truth will be disappointed. And the Argument alto­gether eluded, some urge, that Advocats may be forced to depon upon the having of their Clients Papers. And that by many Decisions they have been oft forced to give them up, after full debates: where­in a special priviledge upon the account of their imployment has been pretended; from which they infer, that they may be also examined upon what past betwixt their Clients and them. But to this, the easie, and just answer is, that an Advocat can be no further obliedged to deliver his Clients Papers, then the Client himself could have been, but neither the one, nor the other could be forced to deliver up any Papers, but such as the Pursuer is in Law allowed an interest in, and in so far as they are the pursuers Papers. Nor are such Papers as ought to be exhibited, to be accounted secrets, and Advocats are obliedged here, not as Advocats, but as ordinary Subjects. But I will not decide this weighty point.

ACT XXVIII.‘A Ratification of an Act of the Lords of Counsel and Session, made in July 1620. against unlawful Dispositions and Alie­nations made by Dyvours and Bankrupts.’

OUR SOVERAINE LORD, with advice and consent of the ESTATES, conveened in this present Parli­ament, ratifies, approves, and for his High­nesse, and His Successours, perpetually con­firmes the Act of the Lords of Counsel and Session, made against Dyvours and Bankrupts, at Edinburg, the 12. day of July, 1620▪ and ordaines the same to have, and take full effect, and execution, as a necessary and profitable Law, for the weal of all his Highness Subjects, Of the which Act the tenor followeth.

THE LORDS Of Counsel and Sessi­on understanding by the grievous and just complaints of many of his maje­sties good subjects, that the fraud, malice, and falshood of a number of Divours and Bankrupts, is become so frequent, and [Page 204] avowed, and hath already taken such pro­gresse, to the over-throw of many honest mens fortunes, and estates, that it is likely to dissolve, trust, commerce and faithful dealing amongst Subjects: Whereupon must ensue the ruine of the whole Estate, if the godlesse deceites of those be not pre­vented, and remedied; who by their ap­parent Wealth in Lands and Goods, and by their show of Conscience, Credit, and Honestie; drawing into their hands upon trust the Money, Merchandize, and Goods, of well-meaning and credulous persons, do no wayes intend to repay the same: but ei­ther to live ryotously, by wasting of other mens substance; or to enrich themselves, by that subtil stealth of true mens goods, and to withdraw themselves, and their goods, forth of this Realme, to elude all executi­on of Justice: And to that effect, and in manifest defraud of their Creditors, do make simulate and fraudful alienations, dis­positions, and other securities, of their Lands, Reversions, Teyndes, Goods, Acti­ons, Debts, and others, belonging unto them, to their Wives, Children, Kinsmen, alleyes, and other confident and interposed [Page 205] persons: without any true, lawful, or ne­cessary cause: and without any just or true price interveining in their said bargaines: Whereby their just Creditors, and Cauti­oners, are falsly and godlesly defrauded of all payment of their just debts: and many honest Families likely to come to utter ruine.

FOR remedie whereof, the said LORDS, according to the power given unto them by His Majestie, and His most Noble Proge­nitors, to set down Orders for administra­tion of Justice: meaning to follow and pra­ctice the good and commendable Laws, Civil and Cannon, made against fraudful alienations, in prejudice of Creditors, and against the authors and partakers of such fraud; Statutes, ordaines, and declares, That in all actions, and causes, depending, or to be intended by any true Creditor, for recoverie of his just Debt; or satisfaction of his lawful action and right: They will de­creet, and decern, all Alienations, Dispo­sitions, Assignations, and translations whatsoever made by the Debtor, of any of his Lands, Teyndes, Reversions, Actions, Debts, or goods whatsoever, to any con­junct [Page 206] or confident person, without true, just, and necessary causes, and without a just price really payed, the same being done after the contracting of lawful Debts from true Creditors: To have been from the beginning, and to be in all times com­ming, Null, and of none availe, force, nor effect: at the instance of the true and just Creditor, by way of action, exception, or reply: without further declarator. And in case any of His Majesties good Subjects (no wayes partakers of the said fraudes) have lawfully purchased any of the said Bankrupts Lands, or goods, by true bar­gains, for just and competent prices, or in satisfaction of their lawful Debts, from the interposed persons, trusted by the said Di­vours. In that case, the right lawfully ac­quired by him who is no wayes partaker of the fraude, shall not be anulled in manner foresaid. But the receiver of the price of the said Lands, goods, and others, from the buyer, shall be holden and oblished to make the same forth-comming to the be­hove of the Bankrupts, true Creditors, in payment of their lawful Debts. And it shall be sufficient probation of the fraud in­tended [Page 207] against the Creditors, if they, or any of them, shall be able to verifie by write, or by oath, of the party receiver of any security from the Divour or Bankrupt, that the same was made without any true, just, and necessary cause, or without any true and competent price: Or that the Lands and goods of the Divour and Bank­rupt being sold by him who bought them from the said Divour, the whole, or the most part of the price thereof was convert­ed, or to be converted to the Bankrupts profit and use. Providing alwayes that so much of the said lands and goods, or pri­ces thereof so trusted by Bankrupts to in­terposed persons as hath been really payed, or assigned by them to any of the Bank­rupts lawful Creditors, shall be allowed un­to them, they making the rest forth-com­ming to the remanent Creditors, who want their due payments. And if in time com­ming any of the said Divours, or their in­terposed partakers of their fraude; shall make any voluntary payment, or right to any person, in defraude of the Lawful, and more timely diligence of another Creditor, having served Inhibition, or used Hornin­ing [Page 208] Arrestment, Comprizing, or other law­ful mean, duly to affect the Divours Lands, or price thereof to his behove. In that case the said Divour or interposed person, shall be holden to make the same forth-com­ming to the Creditor, having used his first lawful dilligence: who shall likewise be preferred to the Concreditor, who being posterior unto him in diligence, hath ob­tained payment by partial favour of the Debtor, or of his interposed confident: and shall have good action to recover from the said Creditor that which was voluntarily payed in defraude of the pursuers diligence.

Finally, THE LORDS declares all such Bankrupts and Divours, and all interposed persons, for covering or executing their frauds, and all others, who shall give coun­sel, and wilful assistance unto the said Bank­rupts▪ in the devising and practising of their said fraudes, and godless deceits, to the pre­judice of their true Creditors, shall be repu­ted and holden dishonest, false, and infamous persons, incapable, of all honours, dignities, benefices, and▪ offices: Or to pass upon In­quests, or Assyses: Or to bear witness in Judgement, or out▪ with in anytimes com­ing.


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