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 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 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 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 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 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 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 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 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 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 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 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 â—â—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 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 Forâ—aâ— lib. 7. de gal imper Polid. lib. 1. Hist. Angl. Petr. dâ— 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 abhorâ—ens quae eas non fuerit admirata And K. Ja. 5. was so much in
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 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 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 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 Common-wealth 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 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 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 persons without any
A OBSERVATIONS Upon the 28. Act 23. Parl. K. JAMES VI. AGAINST Dispositions made in defraud of Creditors c. By Sir George M ckenzie of Rosehaugh EDINBURGH Printed by His MAJESTIES Printers Anno DOM 1675. THE PREFACE 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 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 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 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 AN EXPLICATION OF THE Act of PARLIAMENT 1621. AGAINST BANKRUPTS 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 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 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 forâ— est facti caedere bonis est juris and he only who has lost his estate by accident without his own â—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 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 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
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 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 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 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 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 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 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