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
dammage and interest for he is mor prejudged by the crime then the Fisk and consequently it is not just that he should be excluded by the Fisk since the Fisk has only intrest by him and by the wrong which he has suffered But I refer the reader to Peregrinus de jure fisci who has treated this question most lernedly 5. This action is not only competent to the Creditor himself but to the Creditors Heir for heres defunctus sunt in jure una eadem persona and not only is it competent to the Creditors Heir but in many cases it is competent to his singular successor to whom either the right is asigned or who becomes singular Successor ratione rei as Donators to Escheets and forefaulters c. as was found March 1636. 6. The Defuncts Creditors are allowed to reduce Alienations made to the prejudice of appearand Heirs upon death-bed when these Heirs were their Debitors for though this priviledge seems only introduced in favours of appearand Heirs yet their Creditors may comprise from them omne jus quod in iis est and so reduce as having comprised as was found at the instance of Balmerinochs Creditors contra the Lady Coupar and the 4th January 1672. Roxburgh contra Beatty And in this case it was found that even Creditors might pursue Declaratours and Reductions upon this Act though they had not yet Appris'd albeit it was then alledged that none has interest by our Law to pursue Reduction of a real right except such as have a real right standing in their Person to the Lands whereof they crave the right to be reduced It is in some cases not only competent to such as were Creditores before the alienation quarrelled was made but even to such as were Creditores futuri and became Creditors only after the alienation quarrelled was made And the Civilians mention two cases wherein this action is competent even to such as were not Creditors the time of the Disposition quarrelled The first is if the Disponer designed to borrow money before he made the fraudulent alienation and did borrow the money upon design to break with it for there though the Reducer was not a true Creditor the time of the alienation yet the fraudulent inclination respecting expresly this Creditor or the borrowing of the money made the disposition revocable and reduceable Jason ad jnst hoc tit num 6. but here the design must be expresly proven or at least must be necessarily infer'd from convincing circumstances and presumptions The second case mentioned by them is if the Creditor did lend the money for paying prior Creditors In which case as they might have reduced the deed done in their prejudice so may the posterior Creditors since they come in place of the Creditors whom they payed surrogatum sapit naturam surrogati But this last case does not for ought I remember take place in our Law and seems not at all suitable to the Annalogy of our Law in other cases for else he who had lent money to pay sums due upon an Inhibition would have right to the Inhibition or he who lent money to pay off Comprysings or Arestments without being expresly asigned to either And therefore I conceive that either the Creditor who payes the Creditors who were prior to the alienation takes assignations to these prior debts which these pays and then they may reduce deeds done to the prejudice of that first debt or else he pays only the money to the Debitor and the Debitor pays the prior Creditors which is the case meaned by the Doctors here and in this case I conceive the Creditor who so pays would not have the priviledge and that because the debt which only had the priviledge is extinguisht non entis nullae sunt qualitates nor can the maxime surrogatum sapit naturam surrogati take place here seing that the debt in whose place it is surrogat became extinct before the surrogation and none of the parties could design to transmit this priviledge else the payer had taken Assignation nor can he complain since sibi imputet who did not that which he might have done for securing himself As to the first of these cases there was a famous decision extending thir Reductions even to posterior Creditors 2. July 1673. at the instance of Street and Jackson English-men against James Mason The case whereof was this James Mason having dispon'd his Lands to James Mason his son the said Street and Jackson raised a Reduction of the sons right as granted in prejudice of them who were lawfull Creditors to him by vertue of a Trade and correspondence which was begun long before the alienation though the Bands wherein he became Debitor to them were of a date posterior to the alienation To which it was answered that the ground of the debt being a bond and the Bond being posteriour to the alienation they were not Creditors the time of the alienation and consequently the alienation was not reduceable upon this Act of Parliament 1621. To which it was replied that this pursuit was not founded upon this Act 1621. only but upon the sure principles of the common Law according to which the Lords useed to decide before this Statute was made and according to which they are warranted to proceed by this Statute in cases that are new Though the Debt was not constitute till after the Infeftment was granted yet the pursuers having long before that time entred in a Trade with Mason they did bona fide continue that Trade without any interruption and under the collour of that Trade he had most fraudently bought with their moneys this Land and did most fraudulently convey the same to his Son to their prejudice which did clearly inferr a designed fraud in the Father and tended inevitably to ruine all Trade and Commerce which might be very easily disappointed by such fraudulent conveyances as this Upon which debate the Lords ordained James Mason the Fathers count-books to be produced that it might appear in what condition he was at the time when he made that Disposition to his Son And whether the same was granted upon designe to frustrate his Creditors or not like as they allow'd witnesses to be adduced for either party for clearing the Lords how far the Trade was continued betwixt the Father and thir pursuers before and after the Sons right After making of which report the cause being again called it was urged for the pursuer that by the report it was clear that there was a former Trade and correspondence betwixt them prior to the Sons Infeftment dureing all which time he oftimes sold cheaper then he bought and that when he went to take the Infeftment for his Son he disguised himself and rode from and to the Land in a by-way and caused so mark the Seasing in the Minut-book that no man could know but that the Seasing was taken for the Father and after the Seasing was taken the Father still remained in actual
possession From all which it was argued 1. That Mason elder having entered into a publick and unterrupted Trade and correspondence with the pursuers the said Trade is to be considered with respect to its first beginning and the Bonds though posteriour to the Infeftment yet are to be drawn back ad suam causam viz. the Trade and Commerce 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
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
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
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
Craigmiller himself could not prefer any to the prejudice of him who had done diligence so neither could he bestow that faculty upon any other To which it was answered that Craigmiller might have disponed his Estate to any person he pleased for an onerous Cause before Captain Newman did diligence But so it is that at the time of this Disposition Newman had done no diligence 2. This Disposition at least ought to be sustained in so far as Craigmiller was Debitor to Mr. John either for Debt due to himself or for relief of Cautionry To which answers it was replyed that quo ad the first it was not relevant because though the Disposition was prior to the diligence done by Newman yet the said Newman had done diligence before payment made to any others of the Creditors and consequently before the preferrence Whereas by the forsaid Act no Creditor could be preferred after diligence And to the second Branch of the answer it was replyed that though Craigmiller could have disponed his Estate to Mr. John for his payment or relief expresly before Newmans diligence yet that was not done in this case for this Disposition was only made in general termes for payment of Craigmillers Debts generally and Mr. John had no advantage over others thereby but in swa far as he had by preferring himself by vertue of the forsaid Clause which was unwarrantable And so the Disponers deed quo ad him was null Because quod sacere potuit non fecit quod fecit sacere non potuit Upon which debate the Lords preferred Mr. John only in swa far as concerned his own Debt or Cautionry but sustained not the preferrance in swa far as concerned other Creditors The other Decision was the 24. July 1669. in which Young craved a Disposition made to Anderson by Fleming to be reduced as done in his prejudice he being a Creditor who had inhibit and Comprised It was answered by Anderson that he had granted a Back-band declaring that the Disposition was in Trust for payment of the Debt due to Anderson himself And in the next place for payment of Flemings Creditors and subsumed that he had payed as many Creditors as would exhaust the price which he was in bona fide to do there being no diligence against him nor could he be prejudged by any diligence against Fleming Fleming being denuded as said is To which answer it was replyed that Anderson being but a Trustee was fictione juris in the same condition with Fleming And as Flemnig could not disappoint him as a lawful Creditor so neither could Anderson his Trustee And if it were otherwise the diligences of lawful Creditors might be rendred elusory for the Debitor who resolved to disappoint the diligences of his Creditors might still dispon his Estate to a Trustee which Trustee and Trust the Debitors not knowing they could not know against whom diligence was to be done Likeas in Law this power to prefer Creditors behoved to be interpret legittimo modo interminis habilibus so that the Creditors could not be disappointed but that they should be preferred according to their diligences as they behoved to have been by the Debitor himself In respect of which reply the Lords preferred the Creditors and found that voluntar payment made by the Trustee could not prejudge the Creditors who had done lawful diligences by voluntar payment But the question here remains whether if any of the Creditors had Arrested in Andersons hand as Trustee and had pursued an Action to make forth-comming against him If in that case Anderson was oblieged to give in a qualified Oath bearing that he was Trustee but that there was other Creditors who had done more timeous diligence or if he ought to have called the Creditors who had done more timeous diligence as said is This Act is only conceived in favours of such as were Creditors to those who granted such Dispositions prior to the deeds contraverted But argumento hujus legis and upon the same reason of equity the Lords constantly sustain Declarators at the instance of Creditors of the Father concluding any Right made even by strangers to Children in familia to be null as being granted to their prejudice without an onerous Cause or as being acquired by the parents means Which presumptions are never otherwise elyded then by alledging that the procurer had an Estate aliunde whereby he might have procured the Right contraverted As for instance Sempronius being Debitor to Mevius dispones not his Estate to his Son but acquires an Estate in his Sons name from a stranger this Disposition so acquired can never be quarrelled by Mevius the Fathers Creditor by way of Reduction For the effect of a Reduction is nothing else but the annulling of the deed and the taking it out of the way or the bringing back of the Estate dispon'd to the same condition it was in before which would not be sufficient in this case because the Estate which the Creditor desires to affect was never in the Debitors person And therefore it is necessary for the Creditor to raise a Declarator wherein he must narate that Sempronius being Debitor to him did fraudulently acquire the Right of such and such Lands in his sons name and which must be presumed to be acquired by the Fathers Estate because they were acquired by a Son in familia who is presumed to have no Estate but what he derives from his Father or else he must Lybel that though the Disposition be procured by a Major who is foris-familiat and Trafficking upon his own account the same was truly acquired by the Debitors means and the Disposition only acquired to be a colourable Title to disappoint his Debt Therefore concludes that the said Estate so bought may be declared lyable to his Debt in the same manner as if the Disposition had been taken in his Debitors name The Common Law and ours does not only reprobate Dispositions made by Debitors in meditatione fugae but both the one and the other of these Laws do likewise allow the summar apprehending of Creditors who are suspected to be Bankrupts And by our Law though a man cannot be regularly Imprisoned for Debt without Letters of Caption be formerly raised Yet in Masons case the 5. November 1665. The Lords summarly upon a Bill issued out a warrand to apprehend him tanquam Debitorem suspectum fugitivum And though at first they doubted whether their own power could extend this far yet thereafter they found that it might since even the Admiral grants such warrants and yet there may be some speciality quoad the Admiral since the nature of his Jurisdiction allowes a very sumar procedor and since this his Jurisdiction is ordinarly exercised over Persons who have an easie way to convey themselves out of the Countrey and are ordinarly very little fixed to one place But because this may open a door to great Arbitrariness and may afford great occasion of prejudging the Leidges since upon this pretext
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