Scottish Court of Session Decisions

The pursuer, Grant, writer in Elgin, held two bills of John Mac-Edward, merchant in Aberlour, the one for £30, and the other for £28, 10s. 9d., both bearing to be dated 4th December, 1830; but, in regard to the latter, the day of the month in the date was written on an crasure. In January, 1831, M'Edward was incarcerated by virtue of letters of caption at the instance of Harvey, Hall, and Company, merchants in Aberdeen, creditors, by bill, to the extent of £50; but, in the register of homings, the horning at their instance, as recorded, bore M'Edward's designation to be merchant in Aberdeen, instead of Aberlour, He was liberated on the 9th February, and shortly afterwards he agreed to pay his creditors a certain composition, for which the defenders became cautioners. The pursuer was no party to this transaction; and, on his bills fulling due, he raised letters of horning on both of them, and, on the 13th April, gave M'Edward a charge on that for £30. On receiving this charge, M'Edward, of date the 15th April, wrote the pursuer the following letter:—“I have now got a summons at your instance for the sum of £30 sterling, owing to Mr Grant's (the acceptor's) negligence. However, I am going up to Mains this day, and shall arrange matters so as to have you paid in full for all the transactions about these bills. I am very sorry that I have had the occasion of giving you so much trouble about the bills, as it was so kind of you to accommodate me so friendly at the time you did. But all I can do in the matter is to see Mr Grant, and him and I will try and raise the cash, and pay you in full for the transaction on Thursday first, so I beg you will allow no further steps of execution to go on until that day. You may depend on seeing some of us in Elgin, and settle with you for the whole stock and expenses. Depend that we will pay attention to the above, and give you satisfaction. Write me immediately if that does by the above day, and, for God's sake, let no more steps be taken in prosecution.”

Next day, being Saturday, the 16th, the pursuer replied in these terms: —“I have received yours. If it had been ten minutes later of arriving, a messenger would have been despatched with the charge against you and John Grant on the £28, 10s. 8d. bill. I shall, however, in the mean time, defer executing the second horning until two o'clock on Thursday first; and unless a settlement in cash takes place at or before that hour, you may look for a poinding being executed on the first bill, and a charge upon the £28 bill that evening.”

Diligence being thus suspended till Thursday, the 21st, M'Edward, on Tuesday, the 19th, executed a trust-deed in favour of the defenders, whereby he conveyed to them all his property, in trust for payment of his creditors generally. This was intimated next day to the pursuer, who thereupon caused a messenger to proceed to M'Edward's shop, for the purpose of poinding his effects; but in this he was obstructed by the defenders, who shut the doors on the messenger, by whom an execution of lockfast doors was returned. On the same day the defenders signed an acceptance of the trust, and took an inventory of the effects; and, on the 26th, they took notorial instruments of delivery thereof. The pursuer, in the mean while, obtained letters of open doors under the execution, on the diligence upon the £30 bill, and having also charged M'Edward on the £28 bill, he obtained access to the shop, and had a poinding executed of the effects therein, under both diligences. Having applied to the Sheriff of Banffshire for a warrant of sale, he was opposed by the defenders, on the ground of their trust deed, and possession had thereon. The Sheriff sustained this plea, and refused warrant of sale; whereupon the pursuer brought an advocation, and at the same time instituted a reduction of the trust-deed, on the grounds—

1. That it was a voluntary alienation in satisfaction and security of prior debts, at a time when M'Edward had been rendered notour bankrupt, by imprisonment under the diligence of Harvey, Hall, and Company.

3. That it was a fraud at common law.

3. That it was reducible under the first branch of the Act 1621, c, 18, as a voluntary alienation, without just and necessary cause, in favour of conjunct and confident persons. And,

4. That it was reducible under the second branch of the same statute, as a voluntary alienation made in defraud of begun diligence.

In defence it was pleaded—

1. The letters of caption and incarceration at the instance of Harvey, Hall, and Company are inept, in respect of the blunder in the record of the horning, as to the designation of M'Edward, as merchant in Aberdeen instead of Aberlour.

2. There is no pretence for alleging fraud at common law, in regard to a trust-deed for behoof of the debtor's whole creditors.

3. The defenders can in no sense be considered conjunct and confident with M'Edward in the meaning of the Act 1621. And,

4. The pursuer has no title to found on the second branch of that act. The bill for £28, 10s. 9d. is vitiated in the date, and though no such objection applies to the £30 bill, yet the poinding having been for both debts, without distinction, the whole proceeding is rendered inept by the nullity of one of the bills; and, at any rate, the defenders being lawfully in possession under the trust-deed, necessarily excluded and rendered inept the poinding. ¹

The reduction and advocation having been conjoined, the Lord Ordinary repelled the reasons of advocation; and in the reduction sustained the defences, and assoilzied, adding the subjoined note. ^*