Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION I.

Allegeances how relevant to be proved.
Subject_3 SECT. III.

What Proof relevant to take away Writ.

Gilbert Moses
v.
William Craig, Robert M'Lintock, and James Clark, Trustees for the Creditors of John M'Ewan

Date: 4 February 1773
Case No. No 126.

Parole evidence of the actum et tractatum, at the time of one's signing a deed, admitted, upon a charge of fraud and deception, to relieve from the effect of it.

Click here to view a pdf copy of this documet : PDF Copy

Gilbert Moses having made a demand on M'Ewan, his debtor, for payment, who offered to dispone to him a tenement of houses, as payment pro tanto, a minute of sale, written by the defender Clark, was executed between the parties, and deposited with the writer, to make out a formal disposition; which not being done, (owing, as he alleged, to collusion between Clark, and Craig and M'Lintock, who were all creditors themselves of M'Ewan,) Moses proceeded to execute and register inhibition against M'Ewan, for his own safety; and, afterwards, he brought an action of reduction and improbation, concluding, 1mo, For reduction of a trust-right, in form of an agreement, among M'Ewan's creditors, nominating the defenders sole trustees for the management and division of M'Ewan's effects; which deed, the pursuer alleged, was contrived by the defenders, for their own purposes, and whereto they had elicited his subscription, on false pretences, and greatly to his prejudice; 2do, That the defenders should be decerned to implement the aforesaid minute of sale, according to the terms covenanted between him and M'Ewan.

The Lord Ordinary, upon advising a condescendence, and other papers, before answer, allowed the pursuer to prove, proat de jure, the facts set forth by him; particularly, that, when he signed the trust-right, he was diverted from reading it, by assurances from the Trustees, that his purchase, and previous diligence, were not thereby hurt; and allowed the defenders a proof of their allegations.

A proof was accordingly brought; and the Lord Ordinary pronounced the following interlocator: “Having considered the memorials for both parties, and, particularly, that the pursuer's purchase and right to the tenement in the old wynd was completed by the minute of sale, and inhibition thereon, before his accession to the agreement of the creditors; and as, at the time when he subscribed the agreement, he declared, without objection, that this subject was not understood to be included in the debtor's estate to be conveyed to the Trustees; therefore finds, that, notwithstanding his accession, he is entitled to the benefit of his purchase, and that the bankrupt's conveyance of the subject cannot hurt his right and interest therein.”

Upon a reclaiming petition and answers, the point of law, as to the competency of parole evidence to defeat writing, was particularly under consideration of the Court; and, as there was apparently fraud practised at the time of signing the deed,

“The Lords adhered.”

Act. Walter Campbell. Alt. W. Craig. Clerk. Gibson. Fol. Dic. v. 4. p. 158. Fac. Col. No 55. P. 138.