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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Edmond v. Duffus [1866] ScotLR 2_50 (2 June 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0050.html Cite as: [1866] SLR 2_50, [1866] ScotLR 2_50 |
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Page: 50↓
Averments of prior debt which, though vague, held sufficient.
This was an action of reduction at the instance of a trustee on a sequestrated estate founded upon the Act 1696, c. 5, and also upon fraud at common law. The defender pleaded that there was no issuable matter upon record.
The transaction sought to be set aside was an alleged sale of flour and butter to the bankrupts to the defender on 9th December 1864, within sixty days of their bankruptcy, and when they were in a state of insolvency, in satisfaction or security of a prior debt, to the prejudice of prior creditors of the bankrupts.
The pursuer proposed the following issues:—
“It being admitted that the estates of the said A. & W. Gray were sequestrated under the Bankrupt Statutes on 28th December 1864, and that the pursuer, Francis Edmond, is trustee on the said sequestrated estates:
1. Whether, on or about 26th December 1864, and within sixty days before their said sequestration, the said A. & W. Gray delivered to
Page: 51↓
the defender forty barrels of flour and four casks of butter, of the value in all of £69 or thereby, or any part thereof, and that in security or satisfaction of a prior debt, contrary to the Act 1696, cap. 5? 2. Whether, on or about the said 26th December 1864, the said A. & W. Gray delivered to the defender the said forty barrels of flour and four casks of butter, or any part thereof, fraudulently to disappoint the legal rights of the creditors of the said A. & W. Gray?”
The Lord Ordinary (Mure) reported these issues with the following
“ Note.—In this case the defender when objecting to the terms of the issues, maintained that there was no issuable matter on record. The Lord Ordinary is, however, disposed to think that although the averments as to the defender being a creditor of the bankrupt at the date when the transactions under reduction occurred are not very specifically stated, there is sufficient set forth on the record to entitle the pursuer to an issue, both under the statute and at common law. But it appeared to him that the second issue would require alteration, so as to put in issue the fraudulent reception of the goods by the defender when in the knowledge of the bankrupt's insolvency, a point to be established under the issue at common law, as distinguished from that under the Statute 1696.”
At advising—
The Lord President—This record is somewhat vaguely expressed. At the same time I am not prepared to say that there is not in it sufficient for an issue. The question is whether there is an allegation of prior debt. There is an allegation in condescendence 6 that “the defender took delivery with the view of securing a preference for a prior debt,” whatever it might be; and it is also said in cond. 9 that “there were numerous bill transactions between the bankrupts and the defender for the accommodation sometimes of the bankrupts and sometimes of the defender, and the bill founded on by the defender was one of these accommodation bills.” How that may turn out I don't know, but I think there are materials for going to trial. I think, however, that the common law issue should be placed first, and that on the statute second.
The other Judges concurred; and with this variation the issues proposed were approved of, and the defender was found liable in expenses since the date of closing the record.
Counsel for Pursuer— Clark and Gifford. Agents— Patrick, M'Ewen, & Carment, W.S.
Counsel for Defender—Solicitor-General and Pattison. Agent— John Robertson, S.S.C.
