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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Johnstone v Grant [1835] CA 13_606 (3 March 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0606.html
Cite as: [1835] CA 13_606
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SCOTTISH_Shaw_Court_of_Session
Page: 606↓
v.
Subject_Bankrupt—Reference to Oath.—
Reference to the oath of a bankrupt in an action at instance of his trustee, by the defender who was the bankrupt's brother-in-law, refused as incompetent.
The pursuer Johnstone, trustee under a disposition omnium bonorum, granted by one Lamb a bankrupt, in a process of cessio against his creditors, instituted a reduction of a vendition of a share of a vessel, and an assignation to certain debts, executed by Lamb in favour of Grant, the defender, who was his brother-in-law, within sixty days of the bankruptcy, under the act 1696, c. 5, and as a fraud against his creditors at common law. Inter alia, Grant pleaded in defence, that part of the consideration for which the assignation was executed was a sum of £30, paid down in cash at the date of execution. With reference to this allegation, Grant was allowed, before answer, to give in a reference to oath; and he accordingly lodged a minute, referring the amount to the oath of Lamb, the bankrupt. This was objected to by the trustee as incompetent, in respect of the relationship between these parties.
The Lord Ordinary having found the reference incompetent, adding the subjoined note, * Grant reclaimed.
The Court adhered.
Solicitors: James Morgan, S. S. C.— John Brown.—Agents.
_________________ Footnote _________________
* “The Lord Ordinary thinks the reference inadmissible,—1. Because of the whole circumstance of the Case, which are suspicious. 2. Because the bankrupt, who it is proposed to examine, is the brother-in-law of the person who refers to him. 3. Because the bankrupt has now no interest in the matter, having conveyed all he has to his creditors on obtaining a cessio. The case of Mein, 11th July, 1829, makes relationship an objection, and that of Ferrier, 10th February, 1831, want of interest.
“As soon as this interlocutor becomes final, the case ought to be enrolled, in order that it may be finally disposed of. What is to be done with the conclusion for freights and profits, and has the defender any thing to say about costs, in consequence of his Minute, No. 7 of Process?”