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 To which reason of Reduction it waâ— 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 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 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 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 Celsumê° 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 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 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 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
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 â—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 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 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 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 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 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 Conjunctâ—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 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. 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 asque personas convenit custodiri Si quidem clandestinis ac domesticis fraudibus facile quidvis pro negotii opportunitate confingi potest vel id quod vere gestum est aboleri And 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 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 Sâ—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 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 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 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 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 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 â—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 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 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 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 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
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 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 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 â—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 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 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 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 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 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 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 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 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 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 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
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 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 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 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 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 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 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 Con-creditor 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
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
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 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 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 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 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 â— 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 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 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
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 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 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 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 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 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 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
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 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 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 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 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 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 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
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