Observations upon the 28. (i.e. 18.) Act, 23. Parl. K. James VI. against dispositions made in defraud of creditors, &c. by Sir George Mckenzie ... Mackenzie, George, Sir, 1636-1691. 1675 Approx. 232 KB of XML-encoded text transcribed from 112 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2004-11 (EEBO-TCP Phase 1). A50719 Wing M187 ESTC R19315 12351051 ocm 12351051 59996 This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal . The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. Early English books online. (EEBO-TCP ; phase 1, no. A50719) Transcribed from: (Early English Books Online ; image set 59996) Images scanned from microfilm: (Early English books, 1641-1700 ; 641:5) Observations upon the 28. (i.e. 18.) Act, 23. Parl. K. James VI. against dispositions made in defraud of creditors, &c. by Sir George Mckenzie ... Mackenzie, George, Sir, 1636-1691. England and Wales. Laws, etc. [6], 208 p. Printed by His Majesties printers, Edinburgh : 1675. Errors in paging. Reproduction of original in Bodleian Library. Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford. Re-processed by University of Nebraska-Lincoln and Northwestern, with changes to facilitate morpho-syntactic tagging. Gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. 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Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements). Keying and markup guidelines are available at the Text Creation Partnership web site . eng Fraudulent conveyances -- England -- Law and legislation -- Early works to 1800. 2004-03 TCP Assigned for keying and markup 2004-03 Apex CoVantage Keyed and coded from ProQuest page images 2004-08 Rachel Losh Sampled and proofread 2004-08 Rachel Losh Text and markup reviewed and edited 2004-10 pfs Batch review (QC) and XML conversion A OBSERVATIONS Upon the 28. Act , 23. Parl. K. JAMES VI. AGAINST Dispositions made in defraud of Creditors , &c. By Sir George M ckenzie of Rosehaugh . EDINBURGH , Printed by His MAJESTIES Printers : Anno DOM ▪ 1675. THE PREFACE . THe easiest and plainest part of our Law , are our Statutes : for these are by Printing exposed to all mens view , and are drawn to instruct the vulgar in what they must obey . And this Statute against Bankrupts , must be presumed to be amongst the easiest and most intelligible ; because it is founded upon the evident principles of equity , and reason , and was first drawn by the Lords of Session , and after some years trial , was renewed by the Parliament , who would have plain'd what was obscure , and supplied what was defective : And yet I am afraid that albeit the Statute be very full , and my Observations upon it be very clear , that yet it will appear convincingly that the knowledge of the Law is not easie , and that none should pretend to it , but such as have illuminated their excellent natural parts with laborious Learning , and have polish'd that Learning by a long Experience . I have not debated fully the cases here related , that being fitter for Pleading then Treatises ; nor have I set down all the cases that occurred , lest the Reader should think I industriously designed to confound him , the more to magnifie the necessity of Lawyers . It cannot be denyed but many now in my condition could have treated this Subject , both more profoundly , and delicatly , but yet I may say that nothing here is against Law , since all these Sheets have had the approbation of one of the ablest Lawyers in our Nation , who can neither deceive , nor be deceived in his own profession . These Sheets are but a part of a greater work , wherein I resolve to clear , 1. What Acts are in desuetude , or abrogated . 2. How each Act is interpreted by the Lords decisions . 3. What new doubts may arise from each Act , though not yet decided . 4. Wherein our Statutes agree with the Civil Law , or Laws of other Nations . And thus I hope to make all our Acts of Parliament intelligible and plain . AN EXPLICATION OF THE Act of PARLIAMENT , 1621. AGAINST BANKRUPTS . The words of the Rubrick , or Inscription of this Act , are , A Ratification of the Act of the Lords of Council and Session , made in July , 1620. against unlawful Dispositions and Alienations , made by Dyvours and Bankrupts . FOr the better understanding of the Inscripon or Rubrick , it is fit to know , that the word Bankrupt , which is the translation of the Latine Banciruptor , is in the Original but a barbarous word , either derived from the French word Banque , or the Italian Banco , and the word rumpere : because when Merchands became Bankrupts , they broke , either the seat upon which they did sit ; or the bank or table , at which they did sit , as Salmas . observes , in Pref. de usur . pag. 511. But now the word Banciruptor , is taken not only , pro mensulario ; foro cedente , but for any Merchand , or any other person , who has contracted more debt , then he is able to pay , as Vegnern observes . pag 8. They are called likewise decoctores , quia rem suam coquendo diminuunt , decoquere signifying diminuere , Bud. ad l. si hominem § . quoties ff . deposit . In Italy they are called falliti , & cessantes , Boer . decis . 215. but in the Civil Law the true Latine word is fraudatores ; l. 4. ff . de curat . bon . dand . They are likewise by this Rubrick called Dyvour , or Dyour ; from the Irish word Dyer , as I conceive , which signifies a knave ; and they are likewise called bairman in our Law , l. burg . cap. bairman . 144. & de jud . cap. bairman 46. Though our learned Skeen does in de verb signif . verb. Dyvour , make Bankrupt to be the same with him who has obtained a cessio bonorum , & qui bonis cessit : yet these differ very much , for a Bankrupt is he only , qui foro cessit , sed qui bonis cessit , forum retinet , & bona creditoribus in solutum dedit , Hottoman . de verb. sig . verb. credere , caedere for● est facti , caedere bonis est juris , and he only who has lost his estate by accident , without his own ●ault , was allowed bonis caedere , bancciruptor dicitur , qui dolo casuve non solvendo factus est . Venger . ibid. How the word Banckrupt is taken in this Act , may be justly doubted , for by the Rubrick of the Act , it would appear , that this Act strickes only against dispositions which are made by persons insolvent , and whose estate is not able to pay the debt due to the reducer ; for the Rubrick of the Act beares , to be against dispositions made by Bankrupts or Dyvours ▪ so that these two , are made pares termini ; and therefore , since a Dyvour is a person who is insolvent ; it seems that this Act must only strike against Dispositions made by persons that are insolvent , per argumentum à rubro ad nigrum : for Lawyers are very clear , that where either the Rubrick is an intire sentence , or where any term used in the Rubrick , is explained by any equipolent , or exegetick word , that there the general term which is dubious , is to be interpret according to the import of both these terms ; and therefore , since the word Dyvour is only applicable to persons insolvent , the word Bankrupt must be likewise interpret only of these ; and so the Rubrick running only against Dispositions made by persons that are insolvent , it must follow , that only such deeds are reduceable , as are done to the prejudice of Creditors by a person that is insolvent . 2. This seems likewise consonant to reason ; for if the Creditor can recover his debt , he is not prejudged , and so the design of the Act fails ; and it were most unreasonable to trouble a person who has got a Disposition , except there be an absolute necessity . 3. This is most suitable to the common principles of Law , whereby nunquam recurrendum ad remedium extraordinarium , quamdiu locus est ordinario , no more then in Physick , a member should be cut off where it can be cured ; and therefore , a Creditor who may recover payment by ordinary diligences , such as by the comprysing , or arresting his Debitors Estate , ought not to be allowed to reduce all Dispositions made by his Debtor , since omnes actiones rescissoriae , and particularly actio Pauliana , sunt remedia extraordinariae , whereby the Magistrate has been by cheats of Debtors , and the fraudulent Dispositions of such as contract with them , forced to rescind and annull the private pactions of parties , contrary to the ordinar and general principles . 4. This seems to be further clear , by the narrative of the Act , which runs only against dispositions which elude all execution of justice , whereby Creditors are defrauded of all payment , and many honest families come to utter ruine ; neither of which expressions are applicable to the case of Creditors , who may recover payment otherwise . Conform to which arguments , I find , that the Lords , upon the. 6. of March. 1632. in an Action at the Laird of Garthlands instance , contra Sir James Ker , upon this Act of Parliament did refuse to reduce an Infeftment ; albeit a meer Donation , and made likewise by the Grand-father to his own Grand-child , and that because the granter of the Infeftment was neither at the time of the granting thereof Bankrupt , and non solvendo , nor was he become such since ; neither had the Creditor done diligence for his debt ; and yet it might have seem'd in reason , that though dispositions , where there was an onerous cause , might have been sustained , there was no reason to allow the same priviledge in favours of confident persons , for meer Donations . And upon the 10. February , 1665. the Lord Loure , having quarrel'd the Lady Craigs Infeftment , as being an additional Joynter , granted betwixt Husband and Wife , to his prejudice who was a Creditor , and had comprised the Estate ; It was answered , that the disponer was neither bankrupt , nor insolvendo , nor did the Compriser sustain any prejudice , seing the Lady was content , that the Lord Loure should be preferred to his Annual-rents by vertue of his Comprysing , providing he would assign the Lady to his Comprising pro tanto , that she might recover as much for satisfaction of her additional Joynter ; which answer the Lords found relevant , the Apprisers prejudice being purged , as said is : but they ordained the Compriser , not only to be admitted to have access to the comprised Lands , by assignation in manner forsaid , during the Legal , but they likewise declared , that if the Lady redeemed not within the Legal , the Lands should be irredeemable , and the Lady should be totally excluded ; which though it was but a trysting Interloquetor , do's confirm the former opinion . And though it may be alleadged , that a Disposition being once valid , when it was first granted , cannot become thereafter null by the disponers becoming thereafter insolvent , yet this holds not in many cases in our Law ; for we find , that Dispositions of less then the half of Ward-Lands , without consent of the Superiour , become thereafter null , if as much of that Barrony be thereafter disponed , as will amout to more than the half ; But in my opinion , though the rubrick of our Statutes may found a presumptive argument for explicating the Text ; yet it is not authoritative , for the Rubrick is not read in Parliament , and it is added to the Law , after it is past , carelesly without debate . Our Soveraign Lord , with advice and consent of the Estates : The legislative power of Scotland consists in the Parliament , that is to say , the King and three Estates of Parliament ; and though some think it more proper in our Law to say , Our Soveraign Lord , and Estates of Parliament , as in all the Statutes , or Acts of the 18. Par. Ja : 6 : then to say , Our Soveraign Lord , with advice and consent , &c. yet I conceive , the King Statutes , and they but consent , ( though their consent be necessary ) for his touching them with the Scepter , and not the being voted , makes them Laws ; and in England , the King statutes with consent of Parliament , and upon their supplication , and therefore I understand not Craig . who Diag . 8. affirms Statutes to be constitutiones trium Regni ordinum , cum consensu Principis : for that is just to invert the statutory words of this , and many other Acts. Our old Acts being all past the last day of the Parliament , did not express the statuting power in every Act ; for in effect they were all but branches of one Act , and run , Item that , &c. and many of these Acts bear , It is statute by the Parliament , and the King forbids , as Acts. 13. 14. 1 Par. Ja. 1. which Intimats , that though the Parliament statutes suffragando & consentiendo , yet the King only doth statute sanciendo , & prohibendo . Sometimes our Acts bear , It is statute by the hail Parliament ; and sometimes , It is statute and ordained , without mentioning either King or Parliament ; sometimes also they bear the determination of Parliament , without speaking of the King , which was either where the King was to perform what was statuted , as 23. Act , Par. 1. Ja. 1. It is statute and ordained , that our Soveraign Lord shall gar mend his money . And by the 6 Act , 3 Par. Ja. 2. The Estates has concluded , that the King shall ride thorow the Realme ; or else when the Estates are only to grant what is statuted , as in Commissions granted for uniting the two Kingdoms . But I find one Statute bear , the King statuting without mentioning the Estates of Parliament ▪ viz. Act 19. Sess. 1. Par. 1. Ch. 2. but this is but meer inadvertance . Ratifies and confirms an Act of the Lords of Session , &c. This was originally an Act past by the Lords of Session , when they do sit judicially , at which time it is marked in their books of sederunt , such and such men did sit . Thus the Hebrews disigned the books of the Old Testament , by the first words ; and thus we still mark the Laws from the first words ; and thus the old books of our Law are called Regiam Majestatem , because they begin so . His Majesty , at the first institution of the Colledge of Justice , did allow the Lords of Session to conclude upon sick Rules , Statutes and Ordinances , as shall be thought by them expedient to be observed and keeped in their manner and order of proceeding , at all times , as they devise , conform to reason , equity and justice , his Grace shall ratifie and approve the same . These are the words of the 43. Act , 5. Par. Ja. 5. to the which Act , I think this act relates : but it would appear , both by that Act , and by the power as here repeated , that the Lords of Session have only power to make orders relating to the regulation of their own house , and to the forms of Process . For this was indeed necessary for explication of their Jurisdiction , and possibly was implyed in their very constitution , without any expresse warrand : arg . l 2. ff . de jurisdict . but it seems that this general power cannot authorize them to make Statutes , and Acts relating to the material distribution of Justice ; such as , that all Writs should be null , except subscribed before witnesses , though they might have ordained , that Papers under the hands of their own Clerks , should be so subscribed : for if they could make Statutes , as to any thing else besides the forms of their own house , there needed no Parliament ; for their Statutes might bind all the people in all things ; and yet it may be objected , that by this argument the Lords of Session could not have made this Law , declaring Contracts amongst the Leidges , to be null ; that touching upon one of the fundamentals of humane society , albeit they might have declared such a nullity , receiveable by way of exception , for that concerned only form of Process . But the Answer to this is , that the Lords , in making this Act , did not introduce jus novum , a new Law ; but only adapted to our practice , the old Roman or Civil Law , which they might have followed in their decisions , without making any new Act of sederunt , as they do in most cases where the Civil Law is founded upon equity ; as here ; and where they are not determined by either our former practice , or constitutions . And by the same principle , both the Lords of Session , and the Parliament did in this Statute declare , that their said Act should extend to causes depending , or to be intented : whereas Statues regularly are extended only to future cases ; except where the Act declares what was Law formerly , as in this case . We may then conclude these differences betwixt these Acts of sederunt , and Acts of Parliament , that Acts of sederunt can only be made concerning the formes of procedure , or to fix a constant decision for the future , in cases which they might have so decided , before their own Act : and it is their prudence , and our hapinesse , that they should rather decide in hypothesi , then in thesi . But Acts of Parliament should mainly be made to regulat new substantial grounds of justice and commerce . But though this power of making orders for administration of justice , be properly , and principally their province , yet they have in this but a cumulative jurisdiction with the Parliament , who may and do likewise make such orders , but the Parliament ought to do so sparingly , since forms are better known to the Lords of Session , then to them : and therefore , it seems that the power of making Acts , relating to forms , or of regulating forms already made , belongs particularly to the Lords of Session , both because of ther constitution , and experience . The Lords have been in use , not only to regulat their own Court by Acts of sederunt ; but they have by the same power prescribed regulations to other Courts , and thus as to the Justice Court in anno , 1591. years , they made an Act , that women , and socii criminis , might be received witnesses , in cases of Treason : and we find , that they have likewise regulated inferiour Courts , without any previous warrand , as is clear by the 19. Act , 23. Par. Ja. 6. where the Parliament ratifies an Act of Secret Councel and Session , which did ordain and command , that no Process should be granted before inferiour Judges , on the first Summonds , but upon lybelled Precepts , and citations of fifteen dayes warning . And in anno , 1636. they made an Act of sederunt , appointing , that no consent of any inferiour Court should bind the consenter , except it were subscribed by himself , and that the assertion of the Clerk of that Court was not sufficient . Nor should this extention of their power seem unwarrantable ; for , since they may reduce the Decreets of inferiour Courts , it seems most consequential , that they may regulat their procedure : but though the Lords of the Session pass the Bills before the Justices , and advocat Causes from before that Court , it may seem strange , that they should have power to make Acts of sederunt , for regulating that Court , the jurisdictions Civil and Criminal , being most distinct and different . It may likewayes seem , both by the former Act allowing the Lords of the Session this power , and the Ratification of their Statute specified in this Act , that it is necessar , that all the Acts of sederunt , which relate not meerly to the regulating their own forms , should be ratified by the Parliament , though in the interim of Parliaments , these Acts should bind . And yet , de facto , we see very many Acts of sederunt to have full vigour , and force , without any such confirmation . Before I begin to explain the words of the Act of Parliament , I shall offer this Analysis of it . Either the Creditors who are defrauded , are such Creditors as have done no diligence , or such as have done diligence : if they be such as have not done diligence , then either the Dispositions quarrelled are made to conjunct persons , or not ; if they be made to conjunct , or confident persons , either they are made for necessary and onerous causes , or not ; if they be made for an necessary and onerous cause , they are valid , though made to conjunct or confident persons . 2. If these Dispositions be made without an onerous cause , then either they remain with the conjunct confident to whom they were made , or not ; if they remain with him , they are reduceable , either by way of exception , or reply . But if any third party , no way partaker of the fraud , has lawfully purchast any of the Bankrupts Lands , for a just and true cause , then the Right is not quarrelable , but the Receiver is only lyable to make the same forthcoming to the Bankrupts true Creditors . 3. The fraud is probable by writ , or oath of the party receiver . 4. If the Creditors have done diligence by Inhibition , Horning , &c. Then the Bankrupt cannot in prejudice of these Creditors who have done diligence , dispone voluntarily any part of his Estate to defraud that diligence , in favours of another concreditor , who has done no diligence , or posterior diligence , or in favours of any interposed person to their behoof . And in this part of the Act , it is not considered , whether the interposed person be a person conjunct , or not . 5. The Bankrupts , the interposed persons , and all such as have assisted them , in advising , or practising these frauds , are declared infamous . Conform to the Civil and Canon Law , &c. BEcause the Act of Parliament and Act of sederunt bear , that they have in this Act followed the Civil and Canon Law ; We may justly assert that it were ●●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 For●a● . lib. 7. de gal . imper . Polid. lib. 1. Hist. Angl. Petr. d● amitis Geograph . Europ . tit . di Escosse : and Duck , de auth . jur . civ . lib. 2. cap. 10. And though the Romans had some customs or forms peculiar to the genious of their own Nation : yet their Laws , in undecided cases , are of universal use . And as Boet. well observes , Leges Romanas à Justiniano collect as , tanta ratione & sermonis venustate esse , ut nulla sit natio tam fera vel ab humanitate abhor●ens quae eas non fuerit admirata . And K. Ja. 5. was so much in love with the Civil Law , as Boet. observes , lib. 17. that he made an Act , that no man should succeed to a great Estate in Scotland , who did not understand the Civil Law , and erected two professions of it , one at St. Andrews , and another ar Aberdene ; and when K. James the second did , by the 48. Act , 3. Parliament , ordain , that his Subjects should be governed by no foraign Laws , he design'd not to deny the respect due to the Roman Laws , but to obviat the vain pretences of the Pope , whose Canons and Concessions were obtruded upon the people , as Law , by the Church-men of these times . It is also fit to know , that by the Civil Law many remedies were provided to secure Crditors against the cheats of their Debitors : As first , Actio Pauliana , so called either from Paulus the Praetor , who did introduce it , or from Paulus the Lawyer , who did first advise it : by which Action Creditors might recall either the Estate moveable , or immoveable , dispon'd by their Debitor to their prejudice . 2. Actio in sactum , by which bona incorporalia , such as jura , & servitutes were recalled , when alienated , l. 14. ss . quae in fraudem creditorum . 3. Actio faviana , whereby Patrons might revoke that which was done by their freed men , to the prejudice of that fourth part or legittim which was due to them by the Law. 4. Actio faviana utilis , by which Minors who were adopted or arrogated , might revoke what was done in prejudice of their fourth part due to them . But though Snedwine calls this utilis faviana , yet it is a mistake ; for Hottoman , Gomezius , and others , do much more properly make this a species actionis Calvisia●ae 5. Actio Calvisiana , which was granted indifferently to Patrons and others . 6. Edictum fraudatorium , which was competent , when the Creditor was to revoke what the Debitor had alienated , and which belonged to another , and not to himself : as if a Tutor had alienated the goods belonging to his Pupill , which Pupill , and not himself , was Debitor . The Action competent by the Civil Law ▪ was called Actio revocatoria , so called , because the Judge revoked what was done ; and with us it is called an Action of Reduction , because the deeds so done are reduced or rescinded : And I find the word Reduction used by Civilians even in this sense , as by Panormitan , Concilio secundo , and others . And reducere does properly signifie informam pristinam instaurare , as is clear by Ulp. l. 3. ss . de Itin. act privato § . 15 And therefore we have elegantly called this an Action of Reduction , because the Judge was to restore the thing alienated in prejudice of the Creditor to its former condition , whereas the Reduction of Decreets was a term unknown to the Civil Law , they using only Appeals , and Revisions ; but Reductions of Sentences is used amongst the Doctors , even in the same term and sense that we use it , as is clear by Gail . lib. 1. observ . 141. & 150. And the reason why it was necessar for Lawyers to introduce the necessity of such Reductions or Revocations , was , because in the subtility of Law , the alienation did ipso jure transferre Dominum , l. si sciens ss . de contra empt . And therefore it is that if such Reductions be not raised before the years of prescription , the alienation it self is valid , though within that time it might have been rescinded by this Action of Reduction . Though this Statute only declares all Alienations , Dispositions , Assignations and Translations whatsoever made by the Debitor , of any of his Lands , Teinds , Reversions , Actions , Debts , or Goods whatsumever , to be null ; yet this is extended to Bonds granted , and to Tacks set by the Debitor , to the prejudice of his Creditor , for though neither Tacks , nor Bands , be comprehended under the Letter of the Law , yet the same parity of reason extends the Act to them ; and in Laws which are founded upon the principles of reason , extensions from the same principles are very natural , and in Laws which are introduced for obviating of cheats , extensions are most necessary , because the same subtile and fraudulent inclination which tempted the Debitor to cheat his Creditors , will easily tempt him likewise to cheat the Law , if the wisdome and prudence of the Judge did not meet him where ever he turned . But yet Bands , in so far as they are personal , do not prejudge the Creditor , nor fall they under this Statute : but only in so far as they tend to , and may be the ground of legall Alienation , by Comprizing , Poynding , or other diligence to the prejudice of the Creditors , and by affecting the Debitors Estate . By the word Alienation , is meant not only an express transferring of the right , but any act whereby the dominium or property is loosed to the Debitor , as if the Debitor should in prejudice of his Creditor , habere rem pro de relicto ut alius ●um occupet , if he should relinquish any thing , upon design , that a conjunct or confident person might possess it . Discharges likewise by the Debitor , of a right competent to him , are reduceable upon this Act of Parliament , though the word Discharges be not exprest in the Act , for by the common Law , Competebat Pauliana , quando Creditor liberabat Debitorem suum acceptilatione vel per pactum de non petendo . Wherein l. 1. § . 2. ff . h. t. agrees with l. 5. Basil. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . I doubt not but upon the same parity of reason , if a Debitor suffered a Decreet to go against him , dolose , and connived so far in prejudice of his Creditor , as to omit a competent defence ; but the Creditor might reduce that Decreet upon this Act of Parliament , if he could instruct the connivance and collusion , and verifie the defences that were omitted , but without this collusion were clearly instructed , it were very hard to reduce a Decreet at the instance of a party , who needed not to have been called , I likewise think , that if the Debitor should in prejudice of his Creditor suffer the term to be circumduced against him for not compearing to depon , that Decreet were likewise reduceable : And this was so found at the instance of Marjory Halyburton contra Morison , where though Morison was a singular Successor , and had got an Assignation to the Decreet obtained by collusion against Watte , by his Brother , yet the Lords ordained Witnesses before answer to be led for proving the collusion , and repon'd Watte to his oath , and ordain'd him to depon . But the difficulty there would be , how a Debitor could be compelled to swear ▪ and I doubt not but in this case if the collusion were offered to be proven by the oath of him who obtained the Decreet , that the Decreet would be reduced , though the Debitor compeared not to depon : or if the Creditor pursu'd him , that ●o casu he would be forced to depon , and that if he refused , personal Action would be obtained against him , l. 3. § . 1. h. t. which allows Action to the Creditors , Si data opera ad judicium non venerit . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . Upon the same reason also , if my Debitor should by collusion prejudge his marches by a transaction , meerly to prejudge me who was to secure his Estate to my self by a diligence for my debt ; this transaction might be quarrel'd , as done in defraud of me his Creditor , which agrees with l. 13. Basil. h. t. It is much debated amongst the Civilians , whether he is said to alienat in prejudice of his Creditors who refuses to acquire an Estate that he might acquire , to the advantage of his Creditors : As for instance , if he refused to accept of a Legacy , or to enter Heir , it would appear to me , that by the common Law , Actio Pauliana extends not to these cases , as is clear per l. quod autem ff . quae in fraud ▪ qui autem cum possit aliquid qu●rere , non id agit , ut acquirat ad hoc edictum non pertinet & § . 2. p●oinde & qui repud●avit Haereditatem vel Legi●timam vel Testamentariam non est in eo casu ut huic ●dicto locum faciat . And the ordinary distinction allow'd by the Doctors in this case is , that aut agitur de jure de lato & quaesito , & hoc debitum quaesitum Creditor repudiare non potest , aut agitur de jure non del●to , aut saltem nondum quaesito licet de lato , & non prohibetur illud repudiare . But yet this decision of the Civil Law seems unreasonable , for since the Law was to secure Creditors , it was just that it should have secured them against all frauds , and what fraud is more malicious , then to ly out of an Estate by which the Creditor might be pay'd : or not to fulfil a condition , by the fulfilling whereof , they might be put in a capacity to pay their Debt . And therefore our Law has much more justly by the 106. Act , 7 Par. Ja. 5. allowed , that the Creditor may charge his Debitor to enter Heir , whereupon the Estate may be apprised from the appearand Heir , in the same way , and manner , as if he had entred Heir . As also , by our Law , if a Legacy were left to my Debitor , if he designed to ly out of it meerly to prejudge me , who am his Creditor ; yet the Law would secure me against this malice , either by allowing me to arrest the Legacy left in the hands of the Executor , if the Executor did confirm that Testament wherein my Legacy was left , and so I might establish a right to the said Legacy in my own Person , by a Decreet to make forth-coming ; or if the Executor should refuse or decline to confirm the Testament . I the Legators Creditor might confirm my self Executor , dative ; and so in omnem eventum , secure my self against the fraud designed by my Debitor ; but they are in a mistake who think , that I could have confirmed my self Executor to the Defunct , for the Defunct was not my Debitor , though he left a Legacy to my Debitor . The question is yet harder with us , in conditional obligations , whereof I shall give two instances ; one is , if by contract betwixt my Debitor and Titius , Titius were obliged to pay my Creditor 5000 merks ; and upon the payment thereof , my Creditor were obliged to confirm Titius as his Vassel , but my Debitor finding that the said 5000 merks would accress to me , should upon that head decline to fulfil . The question is , how could I settle in my own Person a right to the said 5000 merks ? And it is thought that the proper way were to comprise from my Debitor , that right by which he could have confirmed Titius ; and having thus put my self in a condition to fulfil the condition upon which the 5000 merks was payable , I could either arrest the money in Titius hand , and force him to make it forth-coming , or else pursue an ordinary action against him , wherein I would conclude that he being obliged to pay 5000 merks to my Debitor , upon obtaining a confirmation from him , should be now descerned to pay me the said 5000 merks , as having come in place of his said Creditor , by having comprised his right , and so being capable to pursue , and fulfil the condition whereupon the said 5000 merks was payable . But it is thought that the last part of the Alternative will not hold , viz. that there may be a personal Action for payment ; and that because , albeit the Creditor having comprised the right whereupon he may confirm , may fulfil the condition , yet he cannot have right to the conditional obligation , so that he may pursue for payment , unless it be setled in his Person by comprising , arrestment , or some other legal diligence . The second case is , if Titius be oblidg'd to pay my Debitor 5000 merks , upon condition that my Debitor should build him a House : The question is , how I , if my Debitor be unwilling to fulfil , can establish a right to the said sum in my own Person . To which it may be answered , that either my Debitor was obliged expresly by way of mutual Contract , to build the said House to Titius : And then some think , that I may force Titius to asigne me to the Contract , and thereby I will force my Debitor to fulfil his part ; but yet I see not how he may be forced to asigne me , or from what that obligation can be infer'd . Others think , that I may arrest , and if when I pursue to make forth-coming , Titius shall alledge that he cannot pay until the condition be fulfilled . I may eleid that allegeance by this reply , viz. sibi imputet , that he did not obtain the implement of that condition by registrating the Contract , and forcing my Debitor to fulfil . But I think the foresaid reply , sibi imputet , would not be relevant , seing the Debitor is secure ; and it cannot be imputed to him that he did not pursue for implement , and as the Creditor of the conditional Debitor would not be heard to say sibi imputet , so this Creditor who can be in no better case ; cannot reply upon sibi imputet . But if my Debitor was not expresly obliged to build the said House , and that Titius was only bound to pay 5000 merks , when my Debitor should build him such a House . I conceive that eo casu , if my said Debitor designed to defraud me by not fulfilling the condition ▪ our Law would allow me no remedy . To be intented by any true Creditor . A Creditor is he to whom we owe any thing ; against which we cannot defend our selves by a perpetual exception . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Basil ▪ de verb signif . l. 10. By these words it clearly appears , that this Action is competent to all Creditors , whether they were Creditors for an onerous cause , or not . For though it would appear by the narrative , that this Law was only designed to secure such as were Creditors for an onerous cause ; and albeit it would seem that the only reason why that this Law was introduced , was wanting here ; since the Creditor did not lend out his money in this case , in contemplation his his Debitors Estate : Yet since in the construction of Law , even donations are good Rights , and the person to whom they are made becomes thereby Creditor ; etiam donatarius est Creditor , post quam donatio est completa ( except in the case where the donation is revockable ) therefore this Action is likewise competent to them ; and so it has been oft decided in our Law. Though Creditors whose term of payment is not come , differ from such whose Debt is suspended by some condition , the one being called Creditor conditionalis , and the other Creditor in diem ; which two differ both by the Civil Law , and ours ; yet whether either of them be comprehended under the general word Creditor , where that word is used in Statutes , is much debated . Cagn . adl . 1. ff . Si certum petetur is of opinion , that these are not true Creditors , because a Debitor is he who may be forced to pay , l. Debitor : ff . de verb. sign . with which Law the Basilicks do agree , for l. 66. tit . Basil. de Reg. jur . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , but so it is that he who owes to a day , or under a condition ▪ cannot be forced to pay . 2. The Law called a conditional debt , the hoop only of a debt . Ex conditionali just . de verb. obl . 3. These are called Creditors in this title quibus ex quacunque causa cum debitore est actio , but so it is that before the condition be purified , or the term of payment , there can be no Action , l. caedere diem , & l. Creditores : ff . de verb. signif . But yet on the other hand , these are both Creditors , because the Law makes Creditor to be genus , the species whereof is Creditor purus , Creditor in diem , & Creditor sub conditione , l. Creditores ss : de verb. signif . 2. It is clear per l. Aquil. ss . ad l. Aquil. that a conditional Creditor may purlue to have his Debt payed , or secured , when the Term comes , though it be not yet come . 3. Ille vere est Creditor , qui perpetua exceptione non potest removeri , l. creditores , ss . de verb. sig . But so it is , that neither Creditor in diem , nor Creditor sub conditione , potest perpetua exceptione removeri . 4 ▪ In Reason it appears , that since when the condition is purified , the condition is drawn back to the date of the Contract ; that therefore the conditional Creditor hath this remedy competent to him , glos in d. § . si quis in fraudem . This Action then , is competent to Creditors , to whom a Debt is conditionally owing ; but is not to take effect until the condition be purified . As for instance , if Titius sell me his Lands with absolute warrandice , and thereafter dispone any part of his Estate , to a conjunct , or confident person , without an onerous cause , I might reduce that alienation as done in defraud of me , though the Lands sold to me were not evicted , and so the warrandice did not actually take place . Which case though it be not expresly decided in our Law , yet I find a reduction ex capite inhibitionis sustained in thir very terms , but with this just caution , viz. that the reduction should take no place till distress should follow , which is likewise decided by the Civil Law , l. Potior ss . qui potiores in pig . § . 1 where also the former caution is used , & ubi conditio purificata est , ibi conditio retrotrahitur . 30. This Action is even competent to these Creditors whose term of payment is not come , though it may seem , that till then they are not true Creditors , The reason why both the Civil Law , and ours allow reductions in these cases , is comonly thought to be , least the Creditor to whom the alienation is made , become insol . vendo , and so the action of reduction , if delayed till then , would then become useless . But if the Lands or others disponed , be still in their hands , it does not import whether they be insolvent or not , seing reductions are in rem , and doe affect the right disponed , whatever be the condition of the person who receiveth the right ; and if they be dispon'd to a third person for an onerous cause , the reduction cannot be effectual ; and for obviating that prejudice , the Creditor may inhibite . The true reason then for sustaining Reductions at the instance of Creditors in diem , or sub conditione , is , that though personal actions for payment , are not competent to such Creditors before the day , or the condition exist , yet they may obtain Declarator , that notwithstanding of such fraudulent rights , their Bonds shall be effectual to them , and their Debitors Estates liable to them , and to execution at their instance , as if those Rights were not granted , and upon the matter , Reductions are nothing els but Declarators to the effect foresaid . 4. By the common Law , such as were Creditors ex delicto , had this remedy , which though some Lawyers have contradicted , yet it is most clear in my opinion ; l. 12. ff . de verb. sig . sed et si ex delicto debeatur , mihi videtur posse creditor is loco accipi : for though he only is a Creditor , whose faith we have followed , l. 1. ff . si certum petat : and that the party injured cannot be said to have followed the faith of the injurer , yet that Law expresses only one quality of a Creditor ; and there are many Creditors whose faith we have not followed . And yet I have seen this debated in our Law , February 1674. Lindsay contra Gray of Haystoun ▪ in which persuit a Reduction was raised by Lindsay against Haystoun , of a Disposition made to Haystoun by him who had murdered her Husband , after the murder committed , to the prejudice of the assythment due to her , and thereafter decerned to her by the Exchequer : from which Reduction the Lords assoilzied , because Haystoun was not obliged in Law to know of the murder , nor did any Register put him in mala side , and singular Successors are only obliged to seek the Registers ; and she having only the gift of the murderers escheet ( he being denounced in absence ) for satisfaction of the assythment due to her ; the Lords found she might pursue Declaratours of Escheet , but could not pursue real Actions . And generally with us in Scotland , he who commits a crime , is either only denounced fugitive , and in that case , his Escheet only falls , or he gets a remission , and then there is an assythment due , but in neither of these cases Reductions upon this Statute are sustained , or else the murderer dies , and then nothing is due even by way of assythment with us . But this first seems unreasonable , or at least severe , for if a person should commit a crime against me , and should thereafter to defraud me of that assythment , and just reparation that were due to me , dispon his estate to a conjunct or confident person ; It seems very unjust that I should be disapointed of my just satisfaction by this voluntar deed of his . And as this is not suitable to the principles of equity , and justice ; so neither seems it suitable to the Principles of Law , for tantum facit quis delinquendo , quantum facit se obligando , and therefore as I could have reduced any such voluntar Alienation , if another had expresly oblidged himself to me , so ought I to have the same benefit when another l●●s committed a cryme against me : And ●● we consider seriously the principles of either the Civil , or our Municipal Law ; we will find ; that not only are Creditors ex dilicto looked upon as Creditors , but that they have 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . or jus prelationis to all other Creditors , in swa far as concerns the necessary reparations . And thus it is with us expresly declared by the 25. Act 14. Par. K. Ja. 2. and the 174. act 13. Par. Ja. 6. that all remissions , or respits granted to any person till the party skaithed be first satisfied , shall be null . And by the 26. Act. 1 Par. Ch. 2. the party from whom goods are stollen , are to have reparation out of the first , and readiest of the thiefs goods And the last part , viz. that nothing is due by way of assythment where the guilty person suffers , seems unreasonable for the Heirs of the person injured being put to great expenses in the persuite oft times , and the wife , and children , being oft times beggar'd by the death of the person killed , it is unjust they should have no reparation ; and the offenders death satisfies publick justice , but not them . And I love bette● the Law 's of Spain and France , which allow's reparation even where the offender dyes . For the better understanding of the general point , how far the Fisk becomes a Creditor , by the common Law , upon the Commission of a cryme , and so may reduce posterior dispositions ; It will be fit to destinguish these cases , first , before the cryme be committed , the Fisk has no interest to reduce any Disposition made by any person whatsoever , except the Commmitter had disponed his Estate , upon disigne to disapoint the Fisk when the cryme should be Committed ; As for instrance , if a person who disigned to run in to the enemy , or to Kill the King , should immediatly before dispon his Estate ; I conceive that disposition would be quarrelable , as done in fraudem fisci . If this animus comm●ttendi crimen , & fraudandi siscum , could be made appear , by these , or such like presumptions , viz. If the disponer did immediatly before the committing of the cryme , and without any Onerous cause , grant the said Disposition , and made an Disposition omnium bonorum , for a particular Disposition of any small part , though made immediatly before . and though gratuitous , could hardly be quarrelable ex hoc capite . 2. If the receiver of the Disposition was conscious to the disponers designe of committing the cryme , then if the cryme was treason , the receiver is guilty of the cryme ; and so the Disposition , and all the receivers own Estate fals to the Fisk. And in these crymes a Disposition made to one who was conscious to the designe , makes the disposition quarrelable whether it be made for an onerous cause , or not , or whether it be omnium bonorum , or not . 3. As to Dispositions made after the cryme is committed , we must distinguish thus , viz. either the cryme committed is treason , and all dispositions made after the perpetuating of this cryme are null , though before citation , or condemnation , but there must 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 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 . ● . 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 ●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 Conjunct●ee with his Wife , of a Tenement of Land , the Fee whereof was provided to the children of the Marriage , and the Father having fraudulently taken a tack from the Son at the same time ; the Lords reduced the said tack , as done in defraud of the said Contract , & contra fidem tabularum nuptialium . And if this had been otherwise decided , all poor women might easily be cheated , and Contracts of Marriage , which are the obligations most priviledged by Law , would 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 S●eidivin hoc tit , pag. 1209. tells us , that inter affines & conjunctas personas fraudes presumuntur . And since men will do as much for their Allies , as for their blood Friends , especially for Sisters , 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 ●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 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 wa● answered , that the reason was not relevant for the Relict was only Creditrix by this Contract , as to what Moveables should belong to the Husband at his Death , which was but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , & spes successionis , but did not hinder the Brother to Dispon at any time , in his liedge poustie , upon any part of his Moveables . And as such Clauses providing a Wife to the third of the Moveables , were most ordinar , so if this were sustained , the Husband could not gift to his Brother , or Relations , any Horse , or any thing else . To which it was replyed , that if such Dispositions were sustained , the former , or the like Clauses would be Elusory , and might easily be Evacuated ; for a Husband might Dispon a little before his Death all his Moveables : this was not decyded . But the Lords inclined only to sustain this Disposition , if made for some probable Cause : but if it had been made upon Death-bed , it was Reduceable , or if there had been great presumptions of fraud adduced to clear , that it was contrived as a meer cheat against the Relict . But were clear , that 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 Celsumꝰ . authoris ff . de except doli . vid. Jason ad l. nemo potest ff . legat : and an instance of this is given in an Alienation made in defraud of Creditors , for lesse then the true price . And even in this case , Reduction is competent for the Creditor , prejudged , in so far as the price received is below the true value ; and thus , l. 7. Basil. h. t. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , si in fraudem Creditorum meorum , minore praetio fundum vendidero , 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 Disposition for payment of it against the Creditors , and yet this may be said to be an onerous cause ; for the looser hazarded as much of his own , against what he gained , and so this Game was but the return of his Money : and like to emptio jactus retis . And though it may be alledged , that by the 13. Act , 23. Pa. Ja. 6. The superplus of what is gained at Game above 100. Pound , be ordained to be consigned for the poor of the Parish . And so the Disposition made for payment of it , must accresse to them ; and is still an onerous and necessar debt , quoad the looser , and consequently is not reduceable at the instance of his Creditors ; yet I conceive that such a Disposition would be reduceable at their instance , as not made for a just cause , since it is made for a cause , upon which the Law would not allow Action . And the Civilians number , what is gained at Game , amongst lucrative causes , Bald. adl . i. C. si quid in fraud Patron . And generally what is acquired unlawfully , is by them said to be acquired , titulo lucrativo , Jason hic num . 8. and thus Dispositions granted ob turpem causam , &c. may be said to be reduceable also upon this Statute , as granted without an just and onerous cause : according to them ; as it is granted without a just cause , to speak in the termes of this Act. And I think , we speak more properly then the Civilians here , for what is gained at Game , rather wants a just cause , then an onerous cause . And necessary causes . DIspositions made to conjunct or confident persons may be quarrelled , though they be made for an just and onerous cause ; if they be not made for an necessar cause . For it may be fraudulent , and be designed to prejudice Creditors , except the cause be necessary , though it be onerous . As for instance , if a conjnuct , or confident person , knowing that his Debitor intends to frustrat his Creditors , and to go out of the Countrey , and yet presuming that a Right granted for an onerous cause cannot be quarrelled , should so far comply with his fraudulent design , as to buy Land from him , and to pay him the price upon that design , such a transaction may appear to be fraudulent , and lyable to be questioned upon thus Act ; and these words of it , without true just and necessary causes . To have been from the beginning ; and to be in all time coming , null , and of none availe , force , strength , or effect ; by way of action , exception , or or reply , without any further Declarator . BY this Paragraph of the Statute , the nullity arising from this Statute , is reduceable by way of exception , as well as action , ope exceptionis , as our Practick terms it : and this was introduced in favours of the Pursuer , who is leised by the fraud● , whose advantage it is to have his interest sustained to him any way , and so to have his diligence thus shortned . For the clearer understanding of these words , we must consider , that by the common Law , nullities are either such as are received ipso jure , or ope exceptionis . That is said to be null , ipso jure , where the thing is declared null by any expresse Law , as this is by this Statute , quod contra legem fit , pro infecto habetur , & ipso jure nullum est . l. non dubium C. de legib : that was nullum ope exceptionis , which was not receiveable , except the nullity had been proponed , by him to whom it was competent . But in our Law nullum ipso jure , & nullum ope exceptionis , are the same , & termini convertibiles : and with us the opposition is betwixt nullum ope exceptionis , & actionis ; the reason of which difference proceeds from the favour designed by the Law , quoad the form of procedure . For if any thing be null by way of exception , it is received summarly against the pursuite , without raising an Action of Reduction , or Declarator : but what is only null by way of Action , needs Process of Reduction , or Declarator . By the common Law , either a Penalty was not adjected to the prohibitory Law , but the thing was simpliciter prohibited , and these things were ipso jure null . But if the Law proceeded further , and adjected a Penalty ; then either the Penalty was adjected to the annulling of the deed : and then the deed whereby the Law was contraveened , and the Penalty , was both due , or else the deed was declared null , but so that it was some way allowed to subsist , but a remedy was appointed , and then it was not null ipso jure , but was reduceable by the way appointed ; according to the principles of the common Law , this nullity was receiveable ipso jure , for quod contra legem fit , id ipso jure nullum est . But so it is that this alienation in defraud of Credirors , was declared null by the Law , and by this Statute being declared null , that nullity should be receivable ope exceptionis . and yet by our practice the nullity arising from this Act , is oft-times received only by way of Reduction , whereby the Lords have receded from the expresse words of the Law ; and the only reason I can give for for it , is , that the Author or Disponer must be called to maintain his Right ; which could not be if the nullity were receiveable ope exceptionis : and if the Disponer were called , he might eleid the the pursuite , by alledging that the Debt , to the prejudice of which his Right was said to be granted , was payed , or discharged , or became extinct by compensation ; neither of which could be known to the receiver . And yet I find in some cases , this nullity receivable , ope exceptiouis , v. g. If the right bear , to be for love and favour ; for here there needs no Probation that it is fraudulent , and it is a principle , that where the nullity is founded upon Law , and the subsumption is instantly verified , that ●o casu the nullity is receiveable ope exceptionis . And in my humble opinion , where ever the fraud can be instantly verified , it ought to be received , ope exceptionis , and the former and ordinary reason , viz. That the Disponer should be called , because he may alledge the debt to be payed , seems not to be good , because that nullity is not competent to be propon'd by way of exception , but where there is a competition betwixt the Creditor , and confident Persons , both pretending right to the Lands and others Dispon'd , which cannot be but where the Creditor has comprised ; and though before comprysing , the Creditor ought to cite the Disponer in his Reduction , which is processus executivus , and previous to , and in order to execution by comprysing : yet after ultimat exeecution by comprysing , it is not necessar the Debitor should be cited upon that pretence , that he may question the Debt as satisfied . 2. I find that Dispositions of Moveables , have been found null by way exception , though nullities of Heretable Rights are not found null , without Reduction or Declarator , and thus it was decyded , 16. June , 1671. Bower contra the Lady Coupar : The reason of which distinction must proceed from this , viz. that mobilium vilis est possessio , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the Greek calls it , and therefore the Law requires not so much solemnity to their constitution , nor destitution , or revocation . 3. I find , that where the Right quarreled , is parvi momenti , the Lords admit the nullity to be receiveable , ope exceptionis , 5 January , 1669. But here the parties were poor , which I find they do also in nullities ex capite inhibitionis &c. in small matters , and betwixt poor parties , nam de minimis non curat lex , & deminimis summarie jus dicit pr●tor . Since there the subject matter is not able to bear large expences . 4. I have observed , that where the nullities did arise incidenter from another pursuit , depending , that there it was received , ope exceptionis , least the other Process should sist , as was found in the case Haliburton contra Morison . Where a Reduction being intented at Haliburtons instance of Morisons Right , ex capite inhibitionis , it was alledged that Morisons Disposition depended upon a Right prior to the Inhibition . To which it was replyed , that that Right was null by the Act 1621. Upon which debate the Lords sustained the quarrelling of this Right , by way of reply . But I should rather think , that where the Right is betwixt most confident persons , such as Father and Son , that eo casu the nullity should be receivable by way of exception , both because the cheat is easiest , and most unfavourable : and because the Father , or very near Friend , might have made all concurr willingly to defend the Right , without the necessity of being called , which is the reason why Reductions are so necessary in other cases . And in case any of His Majesties good Subjects ( no wayes partakers of the Fraud ) have lawfully purchast any of the Bankrupts Lands , for a just and competent Price , &c. IT is much debated amongst the Doctors , if Actio pauliana be Actio realis , or not . The Gloss and some Interpreters assert it to be only a personal Action : and they conclude so , because the Possessor of what is alienated in defraud of Creditors , is not lyable to this Action , except he be particeps fraudis , or else have acquired the thing so alienated without any onerous Cause , that it is not the possession , but the deed of the possessor that is considered . Our Law agrees in this with the Civil Law , for by this Paragraph it is Statute , that all who have acquired the thing alienated in defraud of Creditors , shall not be lyable to this Reduction , but such only as are partakers of the fraud , and have not payed a just price to the interposed Person . As for instance , one dispons his Estate to his other Brother , without any onerous Cause , which Brother Dispons it again to a Stranger who knew nothing of the Fraud ; and who pays a just and adaequat price for it . In which case , a priorlawful Creditor , may reduce the first alienation made to the Brother , but he cannot reduce that alie nation that is made by the Brother to the Stranger : And yet if that Stranger did either know that the first conveiance was fraudulent ( which the Act calls the being partaker of the fraud ) or if he payed not an adequat price , then and in either of these cases , the Creditor may reduce even the Disposition made to the Stranger ; he is said to be partaker of the Fraud , to whom it was intimate by the Creditor , that he should not buy , l. ait praetor ff . hoc tit , which is founded upon excellent reasons , and would certainly hold in our Law ; though I remember not that it is already so decyded . For this intimation would take away the bona sides , upon which the priviledge granted by this Act to singular Successors is founded . But the third parties knowledge , that it was to the behoove of the Bankrupt , or of the confident , is still sufficient to take from him the benefit of his Clause ; which being granted , because of the third parties bonafides , cannot reach to such , whose knowledge put them in mala side , as was found 22 January , 1669. Hamiltoun contra Hamiltoun , and the Viscount of Frendricht . As also , if the Disposition made to the first receiver , whom this Act calls the interposed Person , did bear love and favour , and was made to a confident Person ; in that case , the Right is reduceable . For in that case , the third Person buying ought , to have known the nullity , & scire , & scire debere equiparantur ; and this was found in the Reduction of a Tack , 1672. Hay contra Jamison . Though that Tack had past thorow many hands , and to singular successors , who had acquired their Rights for onerous Causes . I have heard it debated , that though a third Person , who acquires a Right from the Person interposed , for an onerous Cause , be not lyable to this Action ; yet a compryser , comprysing this Right from the interposed Person , had no such priviledge . As for instance , a Right made by one Brother to another without an onerous Cause , is reduceable ; and therefore if one of the Creditors of that Brother , to whom the Right was made , should compryse the Right so made to him : It was alledged , that as this Right would have been reduceable in the Person of the first acquirer , if it had continued with him ; so it would have been reduceable from the Compryser ; and that for these reasons , 1. A Compryser compryses only , omne jus quod in debitore erat , tantum , & tale : and therefore since it was reduceable in his Debitors Person , it ought to be so in his , even as it had been reduceable from his Creditor , ex capite inhibitionis , aut interdictionis , &c. 2. The express words of the priviledge , given by this Paragraph , does not meet this case , for the words run thus ; if any of His Majesties good Subjects , shall by lawful bargains purchase . But so it is , that he who compryses , cannot be said to purchase by way of bargain ; but though a comprysing be a legal Disposition , and Assignation , yet it is a sale by the Judge , and not a purchase , or Contract amongst the parties . 3. This case seems not to fall under the reason of the Act ; for the Act priviledges such , as having a good security , do in contemplation of that Right ( which for ought they can know , is sufficient ) lay out their money ; and so follow the faith of that Right in the first constitution of their Debt . But the Compryser lent his money to his Debitor , without shewing that he relyed upon the Right now quarreled , but finding thereafter that he could not recover his Debt , he comprysed any thing he could find . 4. If this were allowed , it would open a wide door to fraud ; for Rights might be made to confident persons , and then might be comprysed ; which any Creditor might be induced to , whereas few would adventure to buy originally these Rights , as said is . This case was debated in July , 1666. betwixt Jack and Jack , but was not decyded : and it did divide the opinions of very able Lawyers . It may be doubted also , whether the receiver of the Right from the interposed Person , knew not that the Right was fraudulent the time of the alienation , but knew before he received the thing sold , that the first alienation was fraudulent , whether this Right be reduceable or not . And it seems that if he knew either the time of the Vendition , or Tradition , that the Right was fraudulent , that he is particeps fraudis , and ought not to have the benefit of this exception ; for traditionibus , & non venditionibus , transferuntur rerum dominia , and so he cannot be said to purchase a Right , bona side , who knew before Tradition , the fault of the Right Disponed , and he might have kept the price in his own hand till ▪ Tradition , and so needed not have been prejudged . Likeas , it is a principle in Law , that bona sides requiritur in emptionibus ; & tempore contractus , & tempore factae traditionis , l. 2. ff . pro empt . & l. Fin. ff . pro solut . Though the Doctors give as a rule that such alienations are reduceable , as are made without an onerous cause , and where the receiver is particeps fraudis : Yet they except two cases from this Rule , First , deeds done in favours of the Fisk , or of a City , or Incorporation , which they declare reduceable , though the receiver was not particeps fraudis , l. 2. C. de debitore Civitatis . But I think this most unreasonable ; nor would it hold in our Law : for as the Act makes no exception in favours of the ●isk , so in dubio , semper contra siscum respondendum . And since this third party is only priviledged , because of his bona sides , I see not why he should be prejudged by the Mala sides of his Author : or why he should loose his priviledge where he can alledge his bona fides . The second exception is in favours of a Patron , who might revock the Goods sold , though the Buyer was not particeps fraudis . l. 1. ff . si quis in fraudem patro : But in that case he was lyable to pay the price , ibid. we have no use for this in our Law. And yet by our Law , Masters have no such a tacita hypotheca , in the Farms that grew upon their own Ground , that they may reduce any Disposition made thereof , even to a Buyer who was not particeps fraudis . So favourable likewise are singular successors , who are not particepes fraudis ; that a Tack being craved , to be reduced ex capite fraudis , as granted and delivered Blank quoad the issue or ▪ endurance , and in the Blank , eighth years being filled in : Whereas ninteen years were only communed upon ; this was found relevant to reduce the Tack quoad the Tacks-man , who had acquired Right to the Tack for but not quoad a singular Successor , for an onerous cause , without being particeps fraudis . First Decem. 1671. Crichtoun contra Crichtoun and Hannans : and a Disposition being craved to be reduced , as granted by a person who was only a trusty , having given a Back-band ; the Disposition , though made as said is , to a singular Successor , was found to be reduceable , if the Right was made without an onerous cause ; or that the singular Successor knew of the Disponers Back-band ; though it was but a personal obliegement , and not in gremio juris ; and consequently could not in Law have otherwise affected a singular Successor . 20 Novem ▪ 1672. George Workman contra John Crafurd . And it has been often found in our Law , that though gifts of Escheat , taken to defraud Creditors ▪ be reduceable in the persons of such as took them ; yet they are sustained , when establisht by assignations in singular Successors , no wayes partakers of the fraud : And an Assignay is not in Law obliedged to suffer his Cedent to swear in his prejudice , if his Assignation be made for an onerous cause ; but if either the Assignation be granted without an onerous cause or be made upon design to preclude the Debitors from these just remedies : then whatever is competent against the Cedent , is competent against the Assignay ; so that we may establish this general rule , viz. particepes fraudis , have never the priviledges competent to singular Successors . If the Disposition has been made by the interposed person , for payment of a price , but the price is not equivalent to the thing sold , then in so far as the thing exceeds the price , the Disposition will be reduced , but it will stand in quantum ; it exceeds even as a Disposition made to a conjunct person , will be valid in so far as it is onerous , for in either of these cases is the Disposition absolutely revockable . But either the conjunct person in the one case , or the singular Successor in the other , will be obliedged to make up the true and just price , as was found in the former case , Henderson contra Henderson , and the 12. Janu. 1632. Skeen contra Betson , which is likewise more fully clear by these words of the Act , viz. providing alwayes , that so much of the saids Lands , Goods or Prices thereof , so trusted by Bankrupts to interposed persons , as hath been really payed , shall be allowed unto them , they making the rest forth-coming to the remnant Creditors : and the reason of this is , because the Law did not absolutly oppose the alienation ; but only did reprobate it , in so far as it was done to the prejudice of Creditors . And therefore , the Law resolving not to pursue its revenge , further then its design , did reasonably ordain , that these Dispositions made in defraud of Creditors , should only be quarrelable , in so far as the price was not equivalent . This is likewise fit for Commerce ; which is never restrained in so far as is absolutely necessary : and this is very suitable to the Analogy of Law in other cases ; for thus , according to the common Law , he who had taken an obligation for more Annual-rents then the Law allowed , did not thereby loose all his own Annual-rents , but only loosed them in so far as they exceeded the quota prescrived by Law , l. Placuit ff . de usuris . And a Donation bearing a greater summ then the Law allowed , when the Donation was not insinuated or Registrated , did not lose the whole , but only quatenus superat definitionem legis l. sancimus , C. de donat . And in our Law , though it be by expresse statute appointed , that Tacks set by inferior beneficed persons , without the consent of the Patron , for longer then three years , shall be null ; yet quoad these three years they are still sustained , and are not annuled in totum . And albeit by another Statute , all Bands and other Writs not subscribed by the party , or two Nottars for him , be declared null , if exceeding one hundred Pounds . Yet though granted for a greater summ , it will be valid , if he to whom it was granted restrict it to an hundred Pounds : And though Witnesses can prove nothing above an hundred Pounds ; yet though the summ craved be greater , the pursuite will be sustained to be proven pro ut de jure , if restricted to an hundred Pounds . And yet I confess ; that these Arguments from Analogy , do not in this absolutly hold , for in several of these instances , the deeds specified habent individuam , formam , prescribed to them by the Law , & ubi actus est individuus , ratione formae , ea non servata , actus omnino corruit , & utile per inutile vitiatur . But the Arguments taken from Donations , & ab usuris quadrat with this case or at least the Argument ab usuris does . But the receiver of the Price shall be holden to make the same forth-coming to the Bankrupts true Creditors , for payment of their lawful Debts . THough the interposed Person be particeps fraudis , yet he is not by the Act , lyable to restore the Land , or others disponed to him simply , or the price thereof , if he has dispon'd , the same to a third Person : But there will be deduced , or allowed to him , so much either of the Land , or price , as he has given , or payed to lawful Creditors : and the superplus is to be forth-coming to the other Creditors , who wants their due payment ; and that not without new dilligence , by these who have reduced the Right granted to the interposed Person , by Arrestment , or otherwise . But if the Creditor who has prevailed in the Reduction , had not done diligence to affect 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 . ●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 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 of the fraudulent Disposition of the Bankrupts Estate , is , if the price of the Debitors Estate was converted , or to be converted to the Debitors own use , and profit . And this proceeds upon the same reason , whereby the Rebels Escheat is declared null , if he be suffered to remain in Possession , Act 145. Par. 12. Ja. 6. And as by that Act , the suffering the Rebels Wife or Bairns to remain in Possession , is equivalent , as if the Rebel himself remained in Possession ; so if it can be proven , that the price of the Debitors Land was applyed to the behove of his Wife , and Children ; I conceive it is equivalent , as if it were converted to his own behove , though this Act do not expresly beat it . Upon this part of this Act , arose lately the ensuing debate ; Hermistoun being obliged to pay the Lord Sinclar 8000 merks as an Annuity , and for his Aliment : This oblidgement was assigned to John Watt , and was by him transferred to George Cockburn , who did pay several Debts for my Lord , but finding that his payment , might thereafter be challenged by my Lords Creditors , as made in prejudice of them who were prior Creditors , he did take the gift of my Lords Escheat , and gave a back-bond to the Exchequer , wherein he oblieged him to compt at the sight of the Exchequer , for the superplus that exceeded the payment of the Debt truely payed , or to be payed by him , for my Lord. The Creditors having quarrelled those payments upon this act , 1621. as made to their prejudice , because though it was free to the Exchequer , to gift my Lords Escheat , and to burden it with any back-bond , yet this gift was granted truely to George , in contemplation of his former Right ; which former Right was null , as made to defraud them , and for the use of their Debitor ; and the Right made to him was null by this clause , of this Statute , by which all Rights made to any Person , are presumed fraudulent , if the price be converted to the behove of the Debitor : and if this were allowed , poor Creditors might soon be cheated by so easie contriveances . And though His Majesty may prefer a Donator to the true Creditor , where that is chiefly designed by His Majesty , yet where the gift is taken only by a Person who had formerly defrauded Creditors , meerly to pallia● the fraud , in that case , the gift laborat eodam vitio , being also taken for the behove of the Debitors , and so is null by the former Act 145. Par. 12. Ja. 6. But this was repelled , because the Lords found , that whatever might be said against the former Right , upon this Statute , yet the gift of Escheat did sufficiently defend him , for since any Superiour might allow an aliment to his Vassal , being Rebel , and might grant his liferent Escheat for that effect , why should not this liberty be allowed to the King , 3. December , 1674. But if this gift had not interveen'd , it seems uncontraverted , that the obliegment to pay Sinclars Debts , though undertaken prior to any Action at the Creditors instance , was not sufficient to defend the undertaker against prior Creditors , for the Right being at first quarrelable at their instance , as done in defraud of them ; it being a Right made for the behove of the Debitor : it could not thereafter convalesce , by ▪ undertaking the Debitors debts . For it was all one to pay the Money to Sinclars Debitors , as it would have been to have payed it to himself . And if the Money had been payed to my Lord , to the end he might have payed them , the payment might without doubt have been quarrelable . And yet a deed once quarrelable may thereafter convalesce , if their was no Fraud in the first contriveance , v. g. If an Uncle should Dispone his Estate to his Nephew , who knew not of his being insolvent , this Right might be Reduced upon this Statute . And yet if thereafter , the Nephew should bonafide undertake the Uncles debts , before any diligences done by the Creditors , his Disposition would be sustained in so far as true Payment was made . They making the rest forth-coming to the remnant Creditors who want their due payment . SInce by this Act , the Disposition made by a Bankrupt to one who was partaker of the Fraud , is reduceable ▪ so that the buyer will be forced to quite the Land , or thing bought fraudulently to the Bankrupts true Creditor : It may be doubted , whether the buyer , though partaker of the fraud , will get repetition of the price truely payed by him , from the Bankrupt to whom he payed it . And it may be argued , that he would not , because first , the Law never authorizes , nor lends its assistance , to recover what is due by fraudulent , and unworthy obligations , for there is behoved to be the Minister of Iniquity , and to serve Vice in a mean , and sordid way , & ubi dantis , & accipientis turpitudo versatur , cessat repititio . l. 2. ff . de condict . ob . turp . caus . 20. The buyer in this case cannot complain of the Law , since he knew the hazard , and yet run upon it . 3. This were to invite men to commit cheats ; whereas to deny them action of repitition upon the eveiction , were a ready mean to deter them , since the hazard would be so great . 4. This may be further clear , l. 1. C. de prescr . 30. annor . & l. hi qui C. de rescind . vend . & l. fin . C. de litig . & l. si fundum sciens . C , de evict . & l. 25. Basil. de reb . auth . jud . possidend . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . But yet the contrair , viz that the fraudulent buyer ought not to have repitition from the Bankrupt Seller ; may be urged by these reasons , First , Crimes and Frauds are extinguished by mutual compensation , and therefore , since as the Buyer would have had an action of eviction , if no fraud had interveened , so ought he to have the same action where the fraud is mutual , for there it is in the same condition , as if had never been ; for it is extinguished , l. viro . ff . solut . matr . 2. If the Seller should not be oblieged to restore the price , he should gain by his own cheat , for his Creditors would be payed , by prevailing against the buyer , and he would retain the price . 3. Where the buyer and seller are in the same condition , his condition is most favoured by the Law , who seeks only to secure himself against loss ; in pari casu melior est conditio ejus qui certat de damno vitando , l. non debet ff . de reg . jur . And this is also clear , per l. 3. C. de his qui vi metusve caus . & l. sin . C. Common : de legat . I would rather perhaps incline to think , that because both have offended , therefore both should be punished ; the one by being oblieged to refound the price received , and the other by not get in git , though refounded : But that he should see it confiscated by publick authority , like the Legacies left to unworthy Persons , who are uncapable of them ; for these remain not with the Testator , nor yet go to the Legator , but fiunt caduca , and belong to the Fisk. It may be here doubted , if in these Reductions , the defender who is to restore what is disponed to him , will be oblieged to restore the fruits of the thing sold , and whether he will be oblieged to restore them from the date of the sentence , or from the time of Litiscontestation , or from the Citation . The Civil Law l. 25. § . 4. F. h. t. ordains not only the thing it self to be restored , but the fruits which were upon the ground at the time of the alienation , and these which were reaped after the action was intented , non solum autem rem ipsam restitui oportet , verum & 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 favourable then a conjunct perrson , who gets a Disposition without an onerous cause , and that he luoratur fructus ante citationem perceptos , they ought to have more favour . But I have not heard this debated , nor decided , and it is generarly believed that they would be lyable after citation , but if he hath dolose received payment , and was particeps fraudis , even he , though a Creditor ought to restore all the profits received by him from the time of his possession . In all which restitutions the restorer will have detention of the profitable expences bestowed by him , whether he be bonae fidei , or malae Possessor l. 5. de rei vindicat . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . Basil. l. 10. § . 14. h. t. To which there is also added , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . Et si quae aliae ex creditorum volunt ate factae sunt . The Civil Law ordained the fruits that were upon the ground , the time of the Disposition , to be restored , though these were consumed before citation , l. 25. § . 4. h. t. Because fructus pendentes , were pars ▪ soli , and so were to be restored ; but this has not been craved with us : and since they use to be bona fide spent , there is no reason to restore them more then other fruits . I have heard it contraverted , whether a person to whom a Disposition is made in defraud of Creditors , may when that Disposition is reduced , pursue by way of Action , for the expenses he bestowed necessarily in reparing the Lands , or houses disponed ; and it may seem that this being once a Debt due to him , it cannot be taken away but by a Discharge● and yet Lawyers are clear , that though such expenses may be retained , or that the Defender in such Reductions may alledge that his Right cannot be reduced , till all his expenses be repayed . Yet if he suffer his Right to be reduced without proponing upon his expenses , and meliorations , then he seems to have past from them . For the Law presumes , that if he had any thing due to him , he would have craved it before he was dispossest : And albeit the scolion ad l. 28. tit . Basil. de sumptibus in re aliena factis , asserts this only de malae fidei possessore , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ▪ & l. 46. ibid. ! this is also asserted de bonae fidei possessore , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which agrees with l. sumptus de rei vind . & l. si in area de condict . indebit . But yet it is the opinion of some eminent Lawyers with us , that evenafter the Right is reduced , the person to whom the Right is made , may recover payment of what he necessarily bestowed even by way of Action : and Molineus ad consuetud . parisiens . t. i. gloss . 5. Is of their opinion , and asserts that the present customes of all Courts have receded as to this from the Civil Law , and yet it may seem in our Law , that this is competent and omitted , and so should rather be allowed in our Law , then in the Civil Law , especially seeing this is of the nature of compensation . For when the Pursuer craves the thing disponed to be restored , with the fruits and interests : it seems to be a sufficient ground of compensation , or at least an exception quae sapit naturam compensationis , that the Defender bestowed as much upon the thing craved to be reduced , as may compense the fruits , or a part of the Stock , and by expresse Act of Parliament , compensations are not receiveable after sentence , and therefore neither should it be lawful after sentence of Reduction , wherein this allowance might have been craved , to seek allowance by way of Action , for what was bestowed in Mellorations , or necessary expenses . And if in time coming , any of the saids Dyvours , or their interposed partakers of their Fraud , shall make any voluntar payment , or Right to any Person , in defraud of the lawful , and more timely diligence of another Creditor , having served Inhibition , or used Horning , Arrestment , Comprysing , or other lawful means duely to affect the Dyvours Lands , or Goods , or Price thereof to his behove : In that case , the said Dyvour , or interposed Person , shall be holden to make the same forth-coming to the Creditor , having used his first lawful diligence , who shall likewise be preferred to the Creditor , who being Posterior to him in diligence , hath obtained payment by particular favour of the Debitor , or of his interposed confident , and shall have good action to recover from the said Creditor , that which was voluntarly payed , in defraud of the Pursuers diligence . ALbeit by the first part of the Act , all Dispositions be allowed , if made for onerous Causes , to conjunct or confident Persons , yet that only holds where Creditors have done no lawful diligence : But where Creditors have done lawful diligence against the Bankrupt , by Inhibition , Arrestment , Horning , Comprysing , or otherwayes in that case , the Bankrupt against whom the diligence is used , cannot make any voluntar Right of his Estate , to prefer thereby any Creditor he pleases , to the Creditor who has used diligence , and that though the Creditor who has got the Disposition , was likewise a lawful Creditor : but in that case the Creditor who is preferred , is declared by the Act to be lyable to make forth-coming the price of what was disponed to him . By the principles of reason , he seems not to act fraudulently , who gets payment of what is due to him . But yet by the Civil Law , postquam Creditores a Magistratu in possessionem bonorum missi erant , their Debitors could not even pay any true Con-creditor , and so prefer one Crditor to another , suitaly to which , our Law has not allowed here the prefering one Creditor to another , after diligence done by Horning , Inhibition , &c. Which diligence we have equalled to the missio in possessionem by the Roman Magistrate : And in effect there can be no diligence done in Scotland , without the authority of the Magistrate ; for no Inhibition , Horning , &c. can be raised without a warrand from the Magistrate . And as it was reasonable that a Creditor qui sibi vigilavit , by getting payment , should not be prejudged ; so it was as reasonable , that payment made to him in prejudice of another Creditor , qui sibi vigilavit , by doing diligence should not be sustained . And thus we may reconcile this part of the Statute with l. 6. § . 6. h. t. which sayes that qui suum recipit nullam videtur fraudem facere , with which agrees l. 5. § . 2. Basil. h. t. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . From this part of the Act , it is first observeable , that though voluntarly Rights are reduceable , at the instance of prior Creditors , who have done diligence ; yet necessary Rights are not , and therefore , if the Bankrupt was oblieged by a Minute to sell his Land , before he was put to the Horn , if for implement of that Minute , he should thereafter dispone his Lands , that Disposition may seem not Reduceable , at the instance of a Creditor who had used diligence , by Horning , or otherwayes after the Minute , though before the Disposition : because it may be alledged , that in this case , the Creditor cannot be said to have been voluntarly preferred by partial favour , as the Act bears , For that cannot be called voluntar , to which the Disponer might have been compelled . And in this case , as well as in Reductions , ex capite Inhibitionis , these Dispositions which depend upon necessary Causes , are drawn back , ad suam causam . But the doubt may be greater , if the cause upon which the Disposition depended , had no specifick obligation in it , to grant the deed quarrelled , but only a general obligation , v. g. If Titius should only be oblieged by a Minute , to Dispone Lands to Mevius ; if Titius thereafter being put to the Horn , at the instance of 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 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 whomsoever such Dispositions were transfered , they remain still to be deeds done in prejudice of diligences done by a lawful Creditor . And so the ground of the nullity here being real , it ought to be extended to all . But if after the Right is setled in the person of the confident , diligence be done against the Dyvour , which the purchaser from the confident , neither doth , nor is obliedged to know : he is in bona side to acquire , and his Right cannot be questioned upon pretence of diligences , as being real , & quae afficiunt fundum , in respect the diligence is not against the person , who stands in the Right , but against the Author who was denuded . Though the former conclusion holds in Disposions of Lands , yet it may be doubted , whether it should likewise ●hold in Moveables , and it seems very prejudicial to , and destructive of all Commerce , that a third party buying bona fide Moveables , should be quarrelled for them : because though they past throw many hands , and were bought ( it may be ) in a publick Mercat ; yet they were originally Dispon'd by a Bankrupt , to a Con-creditor , in prejudice of another Creditors lawful diligence ; and if this were allowed , no Person could be in bona fide , or in tuto , to Buy or to Trade . Upon this part of the Statute , may be raised this other doubt , viz. a Creditor comprises , and thereafter another Creditor gets a Disposition for payment of his Debt , and is Infeft . And last of all a third Creditor Comprises , and is Infest. The first Creditor who had Comprised , intents Reduction of the Disposition made to the second Creditor , as made after he had done diligence : in which Reduction the second Compriser compears , and desires to be preferred , because he is Infeft before the pursuer , though the first Compryser : and so would be preferred to him . And since qui vincit vincentem ● me , vincit & me ; it follows clearly , that since the second Compryser would be preferred to the first , that thereafter he ought also to be preferred to the Creditor , who had got the Disposition , because the first Compryser would be preferred to him who had got that Disposition . It is answered , for the pursuer who is the first Compriser , that he must be preferred , and the Disposition made to the second Creditor must accress to him , because he had done diligence before his Disposition ; and by this Statute , a Creditor to whom a Disposition is made in defraud of a true Creditors diligence , is oblieged to make his Right forth-coming to the Creditor who has done diligence ; whereas that Disposition would be preferred to the second Comprising , though Infeftment had not followed upon that Comprysing ; because no diligence was done by that Compryser , when the Disposition was made , nor could the second Compryser be preferred ; because he Comprysed only all Right that was in the Person of the Debitor : but so it is , that the Debitor was denuded , by the Disposition made to the Creditor or Trusty . And I think the first Compryser would be preferred ; for this part of the Statute , ordains not the Disposition to be null , and not to prejudge the Creditors doing diligence , which if it had only done , the second Compryser would have been preferred ; but it ordains the Right made to the other Creditor , in prejudice of the diligence , to be forth-coming to them who did diligence , as said is . It is here also observable , that if the Creditor who got the Disposition , had not been Infeft , the second Compryser had certainly been preferred , for he had the first real Right : nor had the Debitor been denuded by the Disposition . As to the argument , qui vincit vincentem me , vincit me . It may be answered , that this Brocard receives many restrictions ; amongst which one is , that if he qui vincit me , use a priviledged way for prevailing against me , which is not competent against another , then potest vincere me , & tamen non vincere vincentem me . And in this case we know , that there is a special priviledge given by this Statute , to the Creditor who does diligence : and by vertue of this priviledge , the first Compryser prevailes here . And this leads me to another doubt in our Law , which is very considerable . There are three Creditors , whereof one has raised , and served an Inhibition : The second Compryses for debts , and upon Bonds posterior to the Inhibition , and is Infeft . The third Compryses also for debts prior to the Inhibition , and is also Infeft . The Inhibiter intents a Reduction , ex capite inhibitionis , against the first Compryser , and reduces his Right ; and thereafter the Inhibiter Compryses also , and being Infeft , he compets for the Mails and Duties with the second Compryser , and craves to be preferred to him , because he has prevailed against the first Compryser who would have been preferred to him , he being but a second Compriser , & qui vincet vincentem , &c. 2. The second Compriser comprised from a person who was denuded , in swa far as the first Compriser denuded the Debitor by his comprising , whereupon In●e●tment followed . But on the other hand , it may be urged for the second Compriser , that the Inhibiter prevai●ed only against the first Compriser by vertue of his Inhibition , which did sweep away the posterior Debts , whereupon that first comprising was founded . But as to his Debts , whereupon he led the second comprising , they were Debts contracted prior to the Inhibition , and so were not liable to a Reduction ex eo capite . And as his Debts could not be quarrelled by this Compriser ▪ so his real Right was also preferable to his , he having a prior Comprising , whereupon In●eftment followed . As no Bankrupt can prejudge his Creditors , who have done diligence , by prefering one of them to another : so neither can he make a Disposition to any confident person , with power to him to pay the Debt due to himself in the first place , and his Creditors in the next place , two instances whereof I remember lately decided . The first was , the 8. of January 1669. the case whereof was this , The Laird of Craigmiller being Debitor to Mr. John Prestoun his Brother , did dispon him his Estate for payment of his Debts particularly therein related ; with power to the said Mr. John to pay any of the Creditors he pleased . And Mr. John being Infeft upon that Disposition , there was a competition for the Mails and Dueties , betwixt Mr. John , and Captain Newman , who was one of the Creditors contained in the Disposition : In which Competition , Captain Newman craved to he preferred , notwithstanding of that Disposition granted to Mr. John , because the Disposition granted to Mr. John , was granted to the behove of the said Captain his Debt , being one of the onerous Causes therein exprest . To which Mr. John answered , that he had power by the same Disposition to prefer any of the Creditors he pleased , and that the value of the Land was now exhausted by payment made to other Creditors : To which it was duplyed by Newman , that this Disposition was fraudulent , and reduceable upon the Act of Parliament 1621 , for as Craigmiller himself could not prefer any to the prejudice of him who had done diligence , so neither could he bestow that faculty upon any other . To which it was answered , that Craigmiller might have disponed his Estate to any person he pleased , for an onerous Cause , before Captain Newman did diligence . But so it is , that at the time of this Disposition , Newman had done no diligence . 2. This Disposition at least ought to be sustained , in so far as Craigmiller was Debitor to Mr. John , either for Debt due to himself , or for relief of Cautionry . To which answers , it was replyed , that quo ad the first , it was not relevant , because though the Disposition was prior to the diligence done by Newman : yet the said Newman had done diligence , before payment made to any others of the Creditors ; and consequently before the preferrence . Whereas by the forsaid Act , no Creditor could be preferred after diligence . And to the second Branch of the answer , it was replyed , that though Craigmiller could have 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 , 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. ●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 cruc●atu remoto saith l fin . Cod. qui. bon . ced . poss . Nor does Infamy follow them , Novella ; and therefore this clause of the Act , cannot be interpret of such Bankrupts : and though the clause be general , without distinguishing Bankrupts : and that it might be therefore alledged , that ubi lex non distinguit , nec nos . Yet general Lawes must receive their restrictive Interpretations from the Common Law. And since the design of this Act , was ( as is very clear by the Narrative ) to prevent , and punish Frauds and Cheats ; it is just , that these general clauses should not be extended beyond the express scope , and designe of the Act. The second kind of Bankrupts mentioned in the Law , are these ; who only by their own fault become Bankrupts : qui suo vitio fortunas conturbarunt . And the third kind of Bankrupts , were such , as became Bankrupts , partly by their own , and partly by the fault of fortune . And both these last kinds of Bankrupts were denyed the benefit of a cessio bonorum , nam hoc est miserorum subsidium , sed non presidiu● , dolosoruml . sin . h. t. & l. pen. ff . de jur . Dot. And with us , the Bankrups of both these Classes are denyed the benefit of a cessio bonorum , except they wear the Habit : though such are spared from it ; whom fortune without their own fault , has thrown into the necessity of seeking that miserable remeed . Nor does the granting of Dispositions that are reduceable upon this Act still infer infamy , for if a man grant a Disposition , whereby one Creditor is preferred to another who has done diligence , that Disposition would be reduceable , and yet if there remained as much as might have payed all the Creditors , that Disposition could not infer infamy . And by this Act , such only are declared infamous , as are guilty of fraud , and Godlesse devices . Such as give council are lyable to the pains of this Act , which is likewise conform to the opinion of the Civilians , vid , Strach . de decotor : But they distinguish betwixt such as gave council , or advice to those who were resolved before to cheat their Creditors ; and some Doctors do conclude , that such advisers , are not punishable , because the Bankrupt followed not here the advice of another , but his own inclination . And this opinion was first sounded upon the Gl●ss . inst . de oblig . que ex de lict . § . ope , but others do more reasonably conclude , with Dynus ad reg . nullus de reg . jur . l. 166. That the advice is equally punishable , whether the Bankrupt was resolved to follow that advice , or his own inclination : Because the adviser did here all that in him was , to transgresse the Law , others distinguish thus , either ( say they ) the principal offender designed only to have cheated a Bankrupt , but delayed till he got advice , and then the adviser is equally punishable with the principal , because there , the transgression was imputeable chiefly to the Adviser : Or else the principal Adviser had begun to defraud and cheat his Creditors ; and the advice did but interveen , and was but supervenient : And then the Adviser is not equally punishable , especially where the contrivance is not otherwise probable , then by meer presumptions . Wilfull assistance also in devising or practising these frauds , is also punishable by this Act , under which Lawyers comprehend such as transact betwixt the Bankrupts and interposed persons , such as lend him Horses to flee , if they knew his design , and such as carry the Goods of the Bankrupt , or such as rescue him when he is apprehended , or stop his being apprehended , Strach . de decoct . part . 2. The punishment appointed by this Act , is , that they shall be repute false persons : By which is not meant , that they shall be punished tanquam falsarii , but as cheats for cheating is a species of falsehood . And yet if a Bankrupt did call himself by the name of a Rich Merchant , thereby to get Credit : or if any treated for him under that name , I conceive they might be pursued tanqnam falsarii , and and might be punisht accordingly . They are also declared uncapable of all Honours , or Dignities , and Offices , which are not distinct punishments from infamy , but are the natural consequences of it . For whosoever is declared infamous , is eo ipso uncapable of all Honours , Dignities , and Offices . They are also declared uncapable to pass upon Inquests , or Assyses . But this was also unnecessary , for Assysers have a mixt imployment , and without being either Judges , or Witnesses , are both , and as to their capacity of Judges , they fell under the foregoing Clause , whereby all Bankrupts and their assistants are declared uncapable to be Judges . And as to their capacity of being Witnesses , they fell under the subsequent Clause , whereby such are likewise debared from being Witnesses . And I believe the reason why they were specially debared by this Act , was because our Law looks upon Assysers , as having an imployment distinct , and differing from either a Judge , or a Witness , and medium participationis , betwixt the two . Though regulariter , in our Law , whatever debars on from being a Witness , debars him likewise from being an Assyser . And there is no surer legal topick with us , then an Argument drawn from a Witness , to an Assyser : And yet argumento hujus legis , an Assyser may be concluded different from both Judge , and Witnesse , and medium participationis , betwixt them . Bankrupts , and their assisters are likewise by this Act , declared uncapable to be Witnesses , and the reason of this exclusion certainly is , because the Law considers such as have cheated Creditors , as persons who would be ready to cheat Judges ; that such as have been dishonest in their own Affairs , will never be honest in the Affairs of other men . And whereas this Clause , debars them from being Witnesses , in-with , or out-with Judgement , by Witnesses out-with Judgement , are meant Witnesses in Writs , as Bonds , Seasings , &c. But yet it may be doubted , whether in Bonds , or such like Writs , this can take place : For there , the Witnesses are presumed of Law to be admitted of consent , which excludes all objections against Witnesses ; and therefore a mans servant , or brother , cannot be received judicially as Witnesses for him ; yet they may be , and are sustained as Witnesses in Bonds granted to him . Nor did I ever hear , a Bond , Seasing , or any other Writ , reduced upon this head , viz. That it had only two Witnesses ; one whereof was uncapable to be a Witnesse , because he was found by the Lords Decreet to have either granted fraudulent Dispositions , or to have been in accession thereto , except he was declared expresly infamous by the Lords sentence , as Mason was . Though such an objection seems well founded upon this Clause of the Act. Not only such as defraud Creditors , are declared infamous by this Act , but even in Declarators founded upon the Common Law , the persons guilty will be declared infamous ; as was found in Masons case : And though it was aledged , that infamy could not be inferred without an expresse Law ; yet it was found that this Act impowered the Lords , to decide conform to the Conmon Law in like cases , & à paritate rationis , and he was thereupon declared infamous . I have reserved to be debated in this last place , whether by vertue of the last Clause of this Act , whereby the advysers of frauds are to be punished : An Advocat may be examined upon his having given advice to his Client , to defraud his Creditors : or whether he may be examined against his Client , who in consulting with him , and taking his advice , has made him as his Advocat , privie to the fraud he has committed . And because these questions are of universal consequence , I am resolved to consider them in general termes , both with , and without relation to this Act. For if Advocats may be forced to depon against themselves , or their Clients in this point , or as to any other thing which is the subject-matter of their consultations , they may be as well forced in all things ; for the parity of reason , and the publick interest being the same . I see not why if the Judge may lawfully force them in the one , he may not as well obliedge them in all other cases . As to the first question , it would appear , that an Advocat cannot be obliedged to depon upon any thing which may bind a guilt upon himself , or which may defame him . As to the next question , it would appear , that it is the interest of the Common-Wealth , to have the truth of all frauds and contrivances detected ; and that he who conceals the truth , is as guilty as he who commits a falshood : But to such as attentively and judiciously consider , they may probably find themselves enclined to the contrary opinion , by these considerations , 1. An Advocat , is by the nature of his imployment tyed to the same faithfulness that any Depositor is : For his Client has depositat in his breast , his greatest secrets ; and it is the interest of the Common-wealth , to have that freedom allowed , and secured , without which , men cannot mannage their affairs , and privat business : and who would use that freedom , if they might be ensnared by it ? This were to beget a diffidence betwixt such , who should of all others , have the greatest mutual confidence in one another ; and this will make ignorant men so jealous of their Advocats , that they will lose their privat business , or succumb in their just defence , rather then hazard the opening of their secrets to those who can give them no advice , when the case is half conceal'd , or may be forced to discover them , when revealed . As for instance , a Client not knowing that he can be defended against an pursuit for murder , by proving it was committed in self-defence , will conceal from his Advocat , that he killed at all , least his confession , and his Advocats testimony , might be made use of against him . 2. This might afford to Advocats great matter of prevarication , and might occasion much prejudice to the Clients , for an Advocat having discovered the weakness of his Clients Cause , might discover it likewise to his adversary : and to cover his prevarication , he might suggest to his said adversary , that he might be examined , and so impute the discovering of these secrets , to the cogency of the Law , and not to his own privat inclinations , which made Rob. Annaeus say , that si tamen de inceps , Advocato liceat , Clientium secreta pandere , & causarum arcana fidei suae commissa , palam & publice proferre eaque parum fido pectore effutire . In foro deinceps , non equitatis cognitio , sed latrocinium exercebitur : tribunalia murices erunt , quibus litigantium simplicitatem undique circumvenire , & imputare licebit . & in judicio , non templum ●hemidis , sed spoliarium erit , si clientes tacita confessionis side captare , & irretire permittetur . Whereas now , if a Clients secret be discovered , he can blame no man but his own Advocats , who are by their honour and interest , oblieged to keep up a secret , whose discovery can be ascribed to none , but them . The designe of all Probation is to convince the Judge , whereas because of the great Relation that is betwixt an Advocat , and his Client , Law and Experience cannot but presume , that hardly Truth can be discovered this way . And this way rather opens a door to lying , or gives occasion to fallacious , and ambiguous concealing of Truth , then helps the discovery of it . Upon which account , the Law has shunned to force men to depon against themselves , or Husbands against their Wives , or Children against their Parents in Criminal cases . And therefore Virgil equals those two , pulsatusve parens , & fraus innexaclienti . Upon which place , Servius observes that Clientes , quasi colentes , Patroni , quasi patres , tantundem ergo est Clientem , quantum filium fallere : and such was the respect due to Clients , that the Law allowed less liberty in deponing against them , then against Blood Relations : and thus M. Cato is brought in , by A. Gell. saying , adversus cognatos pro cliente testatur , testimonium adversus clientem nemo dicit . And the Law has still been rather inclined to evite the hazard of Perjury , then to follow too far the Interest of the Common-wealth ; or of private Parties , since God Almighty suffers by the one , and men only suffer by the other . 5. The Law L. nimis grave C. de testibus , tells us , that Mandatis cavetur , ut presides attendant , ne Patroni iu causa cui Patrocinium prestiterunt , testimonium dicant . And though Bartolus , and some others do expon this Law , so , as if a Judge were thereby only discharged to admit an Advocat to depon for his Client . This Gloss seems to be most absurd , both because the words of the Law are general , and since they extend to both cases , and that no Posterior Law has restricted them , there is no reason why both should not be equally comprehended : As also , Laws are presumed to be made still against the more doubtful case ; but that Advocats could have been received to depon in favours of their Client , was so clearly against the whole Analogy of Law , that there needed no special Law to have been made against that case : but there was necessity to inform Judges , whether Advocats could be forced to depon against their Clients : which gloss is approved by the learned Heraldus de Rer. judicatar auctor . lib. 2. cap. 4 And conform thereto , the Parliament of Paris did find in December 1619. that an Advocat could not be oblieged to depon against his Client , for clearing of a Fraud , for which his Client was pursued . By Justinians 80. Novel , cap. 8. It is appointed , that though witnesses may be forced to depone , both in Civil , and Criminal matters : yet those who had been imployed as Mediators , who are called there , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , should not be forced to depone as witnesses , except both parties consent ; for which no other reason can be given : but because the parties had entrusted their secrets to them . And accordingly the Senat of Savoy , decided the 23. November , 1596. as Faber observes , lib. 4. tit . 15. def . 56. and the reason there given , is , solent enim qui litigant , agere liberius cum istis mediatoribus , quasi cum confessore ; & causae patrono . Then which nothing can be more convincing , Idem etiam in proxeneta observavit papiensis in form . jur . test . num . 15. And in this the Cannon Law agrees with the Civil : for by Can. statut . Caus. 2. quest . 6. It is ordained , that no Clergy-men shall be obliedged , or can be compelled to bear witness in a case which has been referred to him , by two Laicks . And therefore since that trust is held so Sacred , that the secrets even revealed to Arbiters , are not to be extorted from them , much less ought an Advocat , to whose patrocinie , his Clients slee , and from whose faithfulness they seek protection , to violat that trust , and disappoint that confidence , sane id à Romana virtute , & animi magnitudine erat plane alienum . And how much secresie they allowed to witnesses , who had got any thing entrusted to them , is clear , l. 1. § . 38. ff . deposit . si quis tabulas testamenti apud se depositas , pluribus presentibus legit , ait Labeo , depositi actione recte de tabulis agi posse , ego arbitror , & injuriarum agi posse , si hoc animo recitatum testamentum est , quibusdam presentibus , ut judicio secreta ejus qui testatus est divulgarentur . Nor can there be a solid reason given , why Confessors cannot be forced to discover the secrets revealed to them , sub sigillo confessionis , And yet Advocats shall be oblieged to reveal what is consigned to them , under the sacred assurance of Trust , and Secrecy . : Especially seeing that Law which is alledged against them , does acknowlepge them to be juris & justittae Sacerdotes l. 1. ff . de just . & jur . Since the Common wealth is more concerned in the secrets of Affairs , then in secrets of Devotion ; and there are greater temptations to provoke the Trustee to discover the one , then the other : for few can have advantage by what a Confessor can reveal , but many could gain by that an Advocat can discover . I must here beg leave to represent , that the rise of this great trust betwixt Clients , and Patrons , was , that first when Rome was founded , Romulus finding the error the Grecians had committed , in tyranizing over their Clients , ( whom the Athenians called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the Thessalians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he did introduce a mutual Friendship and tye betwixt them . And as Aulus Gellius observes lib. 5. cap. 13. in officiis apud majores , ita observatum est , primum tutela , deinde hospiti , deinde clienti , tum cognato , postea affini . And as Dionis . halic . lib. 2. Ant Rom. observes , the Patron was obliedged , clienti jura interpretari , & lites pro eo suscipere . And this was common to both , that they could never accuse nor bear Witness against one another 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . And on the Laws of the twelve Tables was , patronus si clienti fraudem fecerit , sacer esto . So sacrilegious a thing was it then held , to reveal the Clients secrets : But thereafter this mutual dependence , and friendship , became so suspect to the Roman Emperours , that none were allowed to be Patrons , but Lawyers , whose power the Magistrates needed not suspect ; and who were presumed to be men , so legal , and of such integrity , that they would advice nothing , but what was just . And therefore , betwixt these continued the Trust , and mutual assurance that was required betwixt the old Patrons , and their Clients . Though Advocats be now known to antequaries , for distinction , under the term of patroni secundarii . Whereas it is urged , that it is the interest of the Common-wealth , that truth be discovered : To this it is answered , that it is indeed the interest of the Common-wealth to discover the truth , as far as that can be done , in a convenient and lawful way ; for it is likewise the interest of the Common-wealth , not to unseal the secrets of privat persons , and thereby to render all Trust , and Commerce suspect . And notwithstanding of this Argument , the Law has exempted men from deponing against themselves , and against many others , who are enumerat , l. 4. ff . de testibus and of which we have very many instances in our Law. Rei publicae quidem interest , crimina impunita non esse , sed rei publica quoque interest , pietatis & necessitudinis officia sarta tecta conservari , sine quibus nihil sanctum haberi potest , nec inviolatum . And Cicero lib. 3. de offic . does elegantly affirm , non igitur patria prestabit omnibus officiis , sed ipsi patriae conducit , pios cives habere . Advocats are persons whose Breeding obliedges them to admire Justice , as Musicians do Musick , or as a man does that Countrey in which he lives ; and they having given their Oath de fideli , at their admission , to give their Clients advice according to the Laws : they cannot be presumed to have advised any thing against the Law. And it is known , that they offend in this so infrequently , if at all ▪ that it may seem fiter not to inquire into such cases , that seldom occure , then by inquiry to introduce a jealousie betwixt parties , who need such strict intimacy . And as no Gentleman is desired to divulge his friends secrets , much lesse should the Law require this from Advocats , since it has obliedged them to imploy Advocats : and to entrust them with their secrets . And though men may be suspect , when they debate for their own interest , and advantage , yet what interest can Advocats have here , save that of their Clients , for the Client and not the Advocat suffers by the discovery , and the Common-wealth being only a collective body of Clients ; in effect the Common-wealth is prejudged , because Clients are prejudged . And though a Decision in the Parliament of Paris , be commonly alledged upon this point , 18. June 1580. in the case of one Barbine , yet all that was there decided , was , que l'advocat , & conseil , pourroit estre ouy par for me de tesmoinage . So that the Advocats have there been willing , but were not forced : And the parties objections were there reserved , for the Decision beares . Sauf a la partie , ses reproches : So that they were but examined before answer . Nor can an Advocat be thus said to conceal truth , since he is only said to conceal , who may be forced to depon . And if Clients know , that their Advocats may be forced to depon against them , they will keep their secrets , or propose their doubts under borrowed names ; and thus the design of finding out truth will be disappointed . And the Argument altogether eluded , some urge , that Advocats may be forced to depon upon the having of their Clients Papers . And that by many Decisions they have been oft forced to give them up , after full debates : wherein a special priviledge upon the account of their imployment has been pretended ; from which they infer , that they may be also examined upon what past betwixt their Clients and them . But to this , the easie , and just answer is , that an Advocat can be no further obliedged to deliver his Clients Papers , then the Client himself could have been , but neither the one , nor the other could be forced to deliver up any Papers , but such as the Pursuer is in Law allowed an interest in , and in so far as they are the pursuers Papers . Nor are such Papers as ought to be exhibited , to be accounted secrets , and Advocats are obliedged here , not as Advocats , but as ordinary Subjects . But I will not decide this weighty point . ACT XXVIII . A Ratification of an Act of the Lords of Counsel and Session , made in July 1620. against unlawful Dispositions and Alienations made by Dyvours and Bankrupts . OUR SOVERAINE LORD , with advice and consent of the ESTATES , conveened in this present Parliament , ratifies , approves , and for his Highnesse , and His Successours , perpetually confirmes the Act of the Lords of Counsel and Session , made against Dyvours and Bankrupts , at Edinburg , the 12. day of July , 1620 ▪ and ordaines the same to have , and take full effect , and execution , as a necessary and profitable Law , for the weal of all his Highness Subjects , Of the which Act the tenor followeth . THE LORDS Of Counsel and Session understanding by the grievous and just complaints of many of his majesties good subjects , that the fraud , malice , and falshood of a number of Divours and Bankrupts , is become so frequent , and avowed , and hath already taken such progresse , to the over-throw of many honest mens fortunes , and estates , that it is likely to dissolve , trust , commerce and faithful dealing amongst Subjects : Whereupon must ensue the ruine of the whole Estate , if the godlesse deceites of those be not prevented , and remedied ; who by their apparent Wealth in Lands and Goods , and by their show of Conscience , Credit , and Honestie ; drawing into their hands upon trust the Money , Merchandize , and Goods , of well-meaning and credulous persons , do no wayes intend to repay the same : but either to live ryotously , by wasting of other mens substance ; or to enrich themselves , by that subtil stealth of true mens goods , and to withdraw themselves , and their goods , forth of this Realme , to elude all execution of Justice : And to that effect , and in manifest defraud of their Creditors , do make simulate and fraudful alienations , dispositions , and other securities , of their Lands , Reversions , Teyndes , Goods , Actions , Debts , and others , belonging unto them , to their Wives , Children , Kinsmen , alleyes , and other confident and interposed persons : without any 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 ▪