Scottish Court of Session Decisions

This was an action brought for the reduction, on the head of fraud, of the proceedings in the sequestration of the defender Kerr, and also for the reduction of certain assignations by the trustee under the sequestration to another defender, Kyle, of several tack rights, the property of Kerr, which had been sold under the sequestration to Kyle at a public sale, after due advertisement, and for a full price. The fraud was alleged to consist in the title of the concurring creditor in the sequestration having been concocted by Kerr in order to obtain his consent. The other defenders to the action are the trustee and the commissioners in the sequestration, but all the creditors under the sequestration are not called. The pursuer alleged that he was in possession of prior assignations to the tack rights, which he had procured from the defender Kerr previous to his sequestration, and for value received, but these assignations were unintimated, and the trustee stated that they were granted with a view to defraud the other creditors of the bankrupt, being in favour of the pursuer, who is brother-in-law to the bankrupt and a conjunct and confident person with him; and that, moreover, the price was illusory and never really paid to the bankrupt. The pursuer averred in his condescendence a general knowledge of the fraudulent nature of the transaction by which the sequestration was obtained on the part of all the defenders, and also that they were warned against proceeding with the sale. The sale took place in May 1868, and the pursuer, in one of his answers to the defenders', statement, stated that he was ignorant of the fraudulent nature of the proceedings until February 1869. The defenders pleaded that the pursuer had failed to make out a relevant case against them. The Lord Ordinary ( Mure), after giving the pursuer an opportunity of making a more specific averment of knowledge on the part of the defender Kyle of the nature of the transaction, which the pursuer declined to avail himself of, dismissed the action, on the ground that the pursuer's statement was irrelevant and not sufficient in law to support the conclusions of the summons, the proceedings in the sequestration being ex facie regular. The pursuer reclaimed.

Millar, Q.C., and Rhind, for him, argued that there was a sufficiently specific averment of knowledge on the part of Kyle, and also that this action of reduction was competent, in so far as the pursuer had been in ignorance of the fraudulent nature of the sequestration until the period allowed by statute for applying for the recal of the sequestration had elapsed.

Balfour, for the defenders, was not called upon.

At advising—