therefore as I could have reduced any such voluntar Alienation if another had expresly oblidged himself to me so ought I to have the same benefit when another lâ—â—s committed a cryme against me And â—â— we consider seriously the principles of either the Civil or our Municipal Law we will find that not only are Creditors ex dilicto looked upon as Creditors but that they have 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or jus prelationis to all other Creditors in swa far as concerns the necessary reparations And thus it is with us expresly declared by the 25. Act 14. Par. K. Ja. 2. and the 174. act 13. Par. Ja. 6. that all remissions or respits granted to any person till the party skaithed be first satisfied shall be null And by the 26. Act. 1 Par. Ch. 2. the party from whom goods are stollen are to have reparation out of the first and readiest of the thiefs goods And the last part viz. that nothing is due by way of assythment where the guilty person suffers seems unreasonable for the Heirs of the person injured being put to great expenses in the persuite oft times and the wife and children being oft times beggar'd by the death of the person killed it is unjust they should have no reparation and the offenders death satisfies publick justice but not them And I love betteâ— the Law 's of Spain and France which allow's reparation even where the offender dyes For the better understanding of the general point how far the Fisk becomes a Creditor by the common Law upon the Commission of a cryme and so may reduce posterior dispositions It will be fit to destinguish these cases first before the cryme be committed the Fisk has no interest to reduce any Disposition made by any person whatsoever except the Commmitter had disponed his Estate upon disigne to disapoint the Fisk when the cryme should be Committed As for instrance if a person who disigned to run in to the enemy or to Kill the King should immediatly before dispon his Estate I conceive that disposition would be quarrelable as done in fraudem fisci If this animus commâ—ttendi crimen fraudandi siscum could be made appear by these or such like presumptions viz. If the disponer did immediatly before the committing of the cryme and without any Onerous cause grant the said Disposition and made an Disposition omnium bonorum for a particular Disposition of any small part though made immediatly before and though gratuitous could hardly be quarrelable ex hoc capite 2. If the receiver of the Disposition was conscious to the disponers designe of committing the cryme then if the cryme was treason the receiver is guilty of the cryme and so the Disposition and all the receivers own Estate fals to the Fisk. And in these crymes a Disposition made to one who was conscious to the designe makes the disposition quarrelable whether it be made for an onerous cause or not or whether it be omnium bonorum or not 3. As to Dispositions made after the cryme is committed we must distinguish thus viz. either the cryme committed is treason and all dispositions made after the perpetuating of this cryme are null though before citation or condemnation but there must still ensue a sentence which sentence is drawn back to the committing of the cryme 4. In other crymes Dispositions are either of Heretage or Moveables As to Heretage no disposition is quarrelable because no cryme confiscats Heritage except treason And yet quoad assythments to the party wronged I think there is in reason though our Law allows it not so far jus quasitum to them that they may quarrel all gratuitous Dispositions though made before citation as made to their prejudice who became lawful Creditors by the injury suffered in the same cryme but if the Disposition was for an onerous cause I conceive it cannot be reduced ex hoc capite or affected with the subsequent assythment because the buyer was in bonafide to buy finding nothing against him in the Register of Hornings or Inhibitions And that though he knew the Disponer had committed the cryme because he was not oblidged thereby to know that he was incapacitated in Law to dispon 5. In other crymes besides treason Dispositions of Moveables are quarrelable by the Fisk if if made after sentence and it may be if after the party was cited for the crime if the crime was such as did consiscate Moveables For though regulariter post commissum crimen valet alienatio ante sententiam facta titulo oneroso neque revocatur nisi appareat contrahentium fraus Angel Ad. l. 1. Siquis C. de bon proscript yet there lies still a presumption that all Dispositions made after an accusation are made me tu justae penae Picus ad l. post contract ibid. And all Lawyers are of opinion that in neither of these cases a delinquent may pay his former Creditors And it is a received opinion amongst us that all crimes which are capital do confiscate the commiters Moveables though there be no Act appointing that confiscation as a part of the punishment because Moveables sequuntur personam And thus in the case of Waugh in Selkirk The Lords found his Moveables to fall under Escheet for theft though there be no express Statute confiscating the Moveables for theft But though this be followed in some particular Nations as France Ultrad Concil 17. yet Clarus tels us in Quest. 78. that de consuetudine totus mundus servat quod bona mobilia non confiscantur nisi exdispositione statuti vel consuetudinis excepto crimine Heresis lese Majestatis And particularly in theft Bossius is clear that the Moveables are not Escheet nisi vigore statuti And why with us should it be declared by some Acts that the committers life or goods shall be in the Kings will and in others that the committers Moveables shall be Escheet to the King if this hold in all cases 6. Where the committer is declared punishable by confiscation of his goods and his goods are confiscated ipso jure there even after the committing of the crime some think that the committer can dispon no part of his Moveables even before denounciation or citation That being the effect of confiscation ipso jure as is clear by the above cited Doctors And it would appear that confiscation ipso jure must import somewhat more then the confiscation that results only consequentially from the nature of the deed it self For else why needed the Law express this and if the Law has confiscated them at the time when the crime was committed it would appear that the dominium is thereby transferred to the Fisk and that consequently the committer is devested of them nam duo non possunt esse domini in solidum And if the committer be thereby devested of the property he cannot dispon for none can dispon but he who is proprietor And yet even in that case the person injured should have still action for his
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
then Arestment or Horning can affect heretage and the Law never priviledges a diligence except where the diligence could affect 2. The reason why the Law Priviledges such Creditors as have used these diligences is because the Law presumes they might have affected the Bankrupts Estate by these diligences and because it presumes that the Debitor dispon'd his Estate to disappoint that diligence But so it is that neither could Inhibitions affect Moveables nor can Arrestments affect heretage nor were these Dispositions made to disappoint such diligences and therefore c. 3. When men are to buy Land thy look only the Registers for Inhibitions or Comprisings but they never consider whether there be any Arestments used against the Seller 4. Though this part of the Act be conceived in favours of Creditors who have used Inhibition Horning Arrestment Comprising or other lawful diligence yet this Clause must be so interpret that the meer raising of an Inhibition or Horning is not sufficient except the Inhibition or Horning be execute as was found February 1671. in the Case betwixt Tynet and Grahame of Creigie For the Act of Parliament mentions serving an Inhibition and using a Horning and not the raising of either But yet if the Bankrupt to disappoint his true Creditors who have raised Letters of Inhibition Horning or Arrestment should collude with his other Creditors who know the raising of these Letters and they by express collusion should make and receive such Dispositions I conceive these Dispositions may be quarrelled upon this part of the Act though the Letters were only raised for else the Act might be absolutely disappointed and immediatly upon the raising of the Letters such Dispositions might be made and the Creditor who did exact dilligence omne quod in se erat should be prejudged by fraudulent conveyances and by the nimious diligence of his cheating Debitor Nor should the fraud of a Creditor receiving such Dispositions be of advantage to the Receiver nam nemo debet lucrari ex suo dolo But it is more difficult to resolve whether a meer charge of Horning without denounciation be a sufficient diligence to make all deeds after the charge to be quarrelable upon this Act. And it may be alledged that to charge upon the Horning is to use a Horning which is all that this Act requires 2 The charge is properly the diligence for thereby the Debitor is commanded under certification that he will be denounced whereas the denounciation is but the effect of the dilligence and the Debitor is denounced because he did not obey Which reasons incline me to believe that the charge without denounciation is a sufficient dilligence in this case and for the same reason I believe that a personal charge upon an Inhibition would operate the same effect though the execution were not used at the Mercat Cross because that is only necessar to put the Liedges in mala fide in order to a Reduction ex capite Inhibitionis And I conceive likewise that the Inhibition being lawfully served though not registrat would be sufficient quoad the effect designed by this part of the Act for the Registrating an Inhibition is different from the serving of it and the serving of the Inhibition is all that this Act requires And if the Creditor may reduce ex capite inhibitionis before it be Registrat if it be once served that is to say lawfully execute much more should the execution of it without Registration be sufficient as to this Act. It may be likewise observed that though this part of the Act must be so interpret as that proper and peculiar dilligences may only affect that is to say Arrestment Moveables and Comprysing Heritage yet even in that case Horning may be accounted a sufficient dilligence after the using whereof the Debitor being a Dyvour can neither Dispone Heritage nor Moveables to the prejudice of the Creditor who used the Horning for a Horning is not only a dilligence that may affect Moveables but it is likewise a step in dilligence necessary previous in many cases to Comprysings which are real dilligences By these words any other mean is to be understood other Lawful dilligences beside Inhibitions Hornings Arrestments Comprisings here exprest As for instance if a Creditor should raise a Precept of Poynding and should charge his Debitor thereupon to disappoint which the Debitor should Dispon his moveables to another Creditor the raiser of the Precept might quarrel that Disposition upon this clause of the Act. 5. It is observable that though in the first part of the Act after the Law has declared all deeds done by Bankrupts in favours of their Creditors without an onerous cause to be null yet it subjoyns immediatly in another clause that if a third party shall bona fide acquire a right to these fraudulent rights these rights shall not be quarrellable in their person except they were likewise partakers of the fraud But here where the Law in this clause declares that where diligence is done by a Creditor the Debitor cannot thereafter in his prejudice prefer another who is a Con-creditor and Dispone the Land to him though even for an onerous Cause Yet the Law has not determined whether if this Disposition made to a Con-creditor shall be quarrellable in the Person of one who bona fide has acquired that Disposition from the Con-creditor in the same manner as if it would have been quarrelable in the Person of the Con-creditor himself And though it may be alledged that the clause subjoyned to the first part of the Act in favours of third parties ought to be repeated here for singular Successors in this case not being partakers of the Fraud ought not to be prejudged yet if we consider the case somewhat inwardly we will find that a Disposition made by the Bankrupt to a Con-creditor and by the Con-creditor to a third Party is quarrellable in the third Parties Person For the Con-creditor could make no better Right nor he had himself and there being jus quaesitum to the Creditor by the dilligence so that he might have quarrelled the Right made to one of the Con-creditors by the common Debitor This Right could not be evacuated by any Disposition that the Con-creditor could make and if it were otherwise the Creditors diligence might be easily eluded and disappointed for the Con-creditor finding that the Right made to him was quarrelable he might still transfer his Right to a third party and there was great reason why the Clause conceived in favours of third parties in the first part of the Act annulls only deeds because made fraudulently and therefore this nullity ought not to have been extended against third parties who were not participes fraudis for there deficiebat ratio legis But this Clause of the Act annuls not these deeds upon any personal account but because these deeds are contrary to diligences done by a lawful Creditor And therefore the nullity here ought to be extended quo-ad all because to
Merchants may whilst they are going about great bargains and others about urgent and necessary affairs be laid up in Prison upon this account It will be fit to consider what the common Law and Lawyers have delivered as their opinion in this Point Lawyers distinguish inter fugitivum suspectum de fuga the one is guilty only of an Intention but the other has actually fled And I conceive that meditatio fugae so much considered by our Law is a midst betwixt those two for he who is in meditatione fugae has cum suspecto designed a flight and has cum fugitivo done some extrinsick deed in order to his flight He who is suspect or fugitive may be apprehended by the common Law summarly by any Judge who can cite that Person before him qui potest recitare id est personali coercitione coercere Debitores they may be also apprehended by a Judge otherways incompetent and he that is taken by an incompetent Judge cannot object the incompetency For as Lawyers observe these Debitors who are Fugitive or suspect of flying may be apprehended by warrands direct either by incompetent Judges or by warrands direct in incompetent times such as are vacand times or holy dayes gloss in l. si super C. de feriis verb. â—ideijussionis But with us no Inferiour much less can incompetent Judges can give such warrands And it has been expresly decided that an Arrestment laid on even upon a Bankrupts Goods by an incompetent Judge was not valid 5 December 1671. where the Arrestment was laid on in Pasley by vertue of an Decreet obtained before the Bailie of Cunninghame and so was found null as extra districtum Albeit the Bailie of Cunninghame was alsò Sheriff of Renfrew within which Sheriffdome Pasley lyes Lawyers are likewise of opinion that the Creditor may apprehend one who is Debitor if he find him actually fleeing for fleeing in this case is a kind of cryme But if the flyer be not a Debitor by express Contract he cannot be apprehended by the Creditor without a warrand except either a Judge cannot be had or that he be fleeing with the Debitors Money Ang. in l. extat ff quod met caus He who craves a warrand to take a Debitor who is suspect or fugitive must lybel to the Judge reasons why he suspects his fleeing as that he was packing up his Goods or was lurking or denyed himself when his Creditors were seeking him And though by opinion of the Doctors none who has an immoveable or Land Estate can be thus proceeded against because it is presumed he will have so great care for his Estate as not to leave it and because his Land Estate is alwayes a biding cautioner yet if either the Land Estate be very small or if it be affected with diligences that may exhaust it I think that in these cases such Heretors can have no priviledge nor are thir summar warrands ever allowed to such as become voluntarly Creditors after the Debitor was suspected for these ought to blame themselves who trusted a Person in that condition but it is otherwise if they became Creditors ex delicto vel quasi delicto as for instance if after he was suspected he Robe or Wound or commit any Ryot For in that case he who becomes so his Creditor may have such a warrand for apprehending him and these warrands are granted not only for pure and liquid Debts but even for conditional Debts and for Debts whereof the termes of payment are not yet come and though the Debts be small except they be very inconsiderable Cacia-lup tract de debit susp quest 3. Finally the Lords declares all such Bankrupts and Dyvours and all Interposed Persons for covering or executing their brauds and all others who shall give Council and wilful assistance unto the said Bankrupts in the devising and practising of their saids Frauds and godless deceits to the prejudice of their true Creditors shall be reputed and holden dishonest false and infamous Persons incapable of all Honours Dignities Benefices and Offices or to pass upon Inquests or Assises or to bear witness in Judgement or out-with in any time coming FOr the better understanding of this part of the Act concerning the punishment of Bankrupts and of such as advise or assist them It is fit to observe with the Civilians that Bankrupts and Dyvours are either such as are become insolvendo by their Misfortune rather then Fault And quo ad these because they were guilty of no Crime therefore no Corporal Punishment was appointed for them by the Law omni corporali crucâ—atu remoto saith l fin Cod. qui. bon ced poss Nor does Infamy follow them Novella and therefore this clause of the Act cannot be interpret of such Bankrupts and though the clause be general without distinguishing Bankrupts and that it might be therefore alledged that ubi lex non distinguit nec nos Yet general Lawes must receive their restrictive Interpretations from the Common Law And since the design of this Act was as is very clear by the Narrative to prevent and punish Frauds and Cheats it is just that these general clauses should not be extended beyond the express scope and designe of the Act. The second kind of Bankrupts mentioned in the Law are these who only by their own fault become Bankrupts qui suo vitio fortunas conturbarunt And the third kind of Bankrupts were such as became Bankrupts partly by their own and partly by the fault of fortune And both these last kinds of Bankrupts were denyed the benefit of a cessio bonorum nam hoc est miserorum subsidium sed non presidiuâ— dolosoruml sin h. t. l. pen. ff de jur Dot. And with us the Bankrups of both these Classes are denyed the benefit of a cessio bonorum except they wear the Habit though such are spared from it whom fortune without their own fault has thrown into the necessity of seeking that miserable remeed Nor does the granting of Dispositions that are reduceable upon this Act still infer infamy for if a man grant a Disposition whereby one Creditor is preferred to another who has done diligence that Disposition would be reduceable and yet if there remained as much as might have payed all the Creditors that Disposition could not infer infamy And by this Act such only are declared infamous as are guilty of fraud and Godlesse devices Such as give council are lyable to the pains of this Act which is likewise conform to the opinion of the Civilians vid Strach de decotor But they distinguish betwixt such as gave council or advice to those who were resolved before to cheat their Creditors and some Doctors do conclude that such advisers are not punishable because the Bankrupt followed not here the advice of another but his own inclination And this opinion was first sounded upon the Glâ—ss inst de oblig que ex de lict § ope but others do more reasonably conclude with Dynus ad reg
true lawful or necessary cause and without any just or true price interveining in their said bargaines Whereby their just Creditors and Cautioners are falsly and godlesly defrauded of all payment of their just debts and many honest Families likely to come to utter ruine FOR remedie whereof the said LORDS according to the power given unto them by His Majestie and His most Noble Progenitors to set down Orders for administration of Justice meaning to follow and practice the good and commendable Laws Civil and Cannon made against fraudful alienations in prejudice of Creditors and against the authors and partakers of such fraud Statutes ordaines and declares That in all actions and causes depending or to be intended by any true Creditor for recoverie of his just Debt or satisfaction of his lawful action and right They will decreet and decern all Alienations Dispositions Assignations and translations whatsoever made by the Debtor of any of his Lands Teyndes Reversions Actions Debts or goods whatsoever to any conjunct or confident person without true just and necessary causes and without a just price really payed the same being done after the contracting of lawful Debts from true Creditors To have been from the beginning and to be in all times comming Null and of none availe force nor effect at the instance of the true and just Creditor by way of action exception or reply without further declarator And in case any of His Majesties good Subjects no wayes partakers of the said fraudes have lawfully purchased any of the said Bankrupts Lands or goods by true bargains for just and competent prices or in satisfaction of their lawful Debts from the interposed persons trusted by the said Divours In that case the right lawfully acquired by him who is no wayes partaker of the fraude shall not be anulled in manner foresaid But the receiver of the price of the said Lands goods and others from the buyer shall be holden and oblished to make the same forth-comming to the behove of the Bankrupts true Creditors in payment of their lawful Debts And it shall be sufficient probation of the fraud intended against the Creditors if they or any of them shall be able to verifie by write or by oath of the party receiver of any security from the Divour or Bankrupt that the same was made without any true just and necessary cause or without any true and competent price Or that the Lands and goods of the Divour and Bankrupt being sold by him who bought them from the said Divour the whole or the most part of the price thereof was converted or to be converted to the Bankrupts profit and use Providing alwayes that so much of the said lands and goods or prices thereof so trusted by Bankrupts to interposed persons as hath been really payed or assigned by them to any of the Bankrupts lawful Creditors shall be allowed unto them they making the rest forth-comming to the remanent Creditors who want their due payments And if in time comming any of the said Divours or their interposed partakers of their fraude shall make any voluntary payment or right to any person in defraude of the Lawful and more timely diligence of another Creditor having served Inhibition or used Hornining Arrestment Comprizing or other lawful mean duly to affect the Divours Lands or price thereof to his behove In that case the said Divour or interposed person shall be holden to make the same forth-comming to the Creditor having used his first lawful dilligence who shall likewise be preferred to the Concreditor who being posterior unto him in diligence hath obtained payment by partial favour of the Debtor or of his interposed confident and shall have good action to recover from the said Creditor that which was voluntarily payed in defraude of the pursuers diligence Finally THE LORDS declares all such Bankrupts and Divours and all interposed persons for covering or executing their frauds and all others who shall give counsel and wilful assistance unto the said Bankrupts in the devising and practising of their said fraudes and godless deceits to the prejudice of their true Creditors shall be reputed and holden dishonest false and infamous persons incapable of all honours dignities benefices and offices Or to pass upon Inquests or Assyses Or to bear witness in Judgement or out with in anytimes coming FINIS