Scottish Court of Session Decisions

This is an action of reduction at the instance of Donald Cameron, warehouse porter in Glasgow, against Angus Dow, wine and spirit merchant there, sole surviving trustee of the late Allan Cameron, of a minute of appointment of trustees or trust-deed, said to have been executed by the said Allan Cameron, and dated 16th September 1847, and minute annexed thereto, and also of a minute of acceptance by the defender and two other persons of the office of trustees under the above deed. The summons further contained conclusions of count and reckoning for the intromissions of the defender and his co-trustees with the estate of the said Allan Cameron. The pursuer sued as a true creditor of the said Allan Cameron, and also, as executor-creditor, decerned to him. No allegation of Cameron's insolvency was made in the summons and original condescendence, but in the revised condescendence a statement was introduced to the effect that at the date of the said minutes Allan Cameron was insolvent, or at least he was divested of his whole means and rendered insolvent thereby. In his pleas in law the pursuer stated that under the Act 1621, c. 18, “the minutes in question should be reduced, as being gratuitous alienations to conjunct and confident parties, to the prejudice of the pursuer, as a true creditor of the granter; and, separatim, as being made by a party insolvent, or who had thereby rendered himself insolvent, in defraud of the pursuer's rights as his creditor.”

There was also a plea applicable to the conclusions for count and rezoning. The defender pleaded, “the averments are not relevant or sufficient in law to support the conclusions, in respect there is no averment that the deceased Allan Cameron was at any time insolvent, or that the trust was executed to defraud or to the hurt of prior creditors; and there having been no averment or lea in reference to insolvency in the summons and condescendence, the pursuer is not now entitled to found on alleged insolvency as a ground of action.”

The Lord Ordinary (Barcaple) on the 22d November 1866 sustained the above plea for the defender, and dismissed the action. His Lordship observed in his note:—

“The Proper mode of libel a reduction on the Act 1621, c. 18, is undoubtedly to set forth, as a substantive part of the ground of reduction, that the granter was insolvent at the date of the deed challenged. The fact of insolvency may be established by statutory presumption in the absence of positive proof; but it is a fact essential to the pursuer's case. Accordingly, in Wood v. Dalrymple 4th December 1823, 2 S. 480, a summons of reduction of the indorsations of bills libelling on the Acts 1696 and 1621, “which did not distinctly set forth that the indorser was bankrupt or insolvent, or any facts referring to this at the date of making the indorsations,” was dismissed as irrelevant. In the recent case of Bolden v. Ferguson, 3d March 1863, 1 M'P., 522, a more lenient course was adopted. It was then objected, when the record had been closed and issues were being adjusted, that there was no averment of insolvency either at the date of the deed or of the challenge. An opinion was indicated from the bench that it was necessary to aver insolvency, but the Court allowed the record to be opened up to admit such

Page: 131↓

an averment, on payment of expenses only from the date of the Lord Ordinary's interlocutor.

In the present case, where the averment of insolvency, though not in the summons, has been made by the pursuer on revisal, the Lord Ordinary would have been disposed to look upon the case of Bolden as a sufficient authority for holding that in modern practice, the averment is of such a kind as may be introduced into the Record without an amendment of the libel, when the general character of the averments in the original summons is such as to make it fair that the pursuer should be allowed to make them distinct and specific on this point, by the introduction of a positive averment of insolvency. But the present case does not seem to warrant such a mitigation of the more strict rule of correct in favour of the pursuer. In the original summons there is no statement implying the existence of any creditor of the granter of the deed under reduction, except the pursuer was a true creditor of Cameron on the account libelled, or a large portion of it, amounting to between £l4 and £15, was due at 16th September 1847, the date of granting the deed under reduction. This is the only debt which is said in the original summons to have been owing at that time by Cameron.

The Lord Ordinary cannot read the summons as even by implication setting forth a case of which the insolvency of Cameron at the date of granting the deed in question was any part. On the contrary, he thinks that the pursuer must be held to have brought his action apparently advisedly, upon the view that he was entitled to set aside the deed without respect to whether Cameron was insolvent at that date or not, and that he purposely abstained from making the averment. If this is the correct view of the summons, the pursuer was not entitled on revisal to introduce a ground of action which he had previously excluded. The matter might have been different as to insolvency at the date of the challenge. That is not explicitly averred in the summons, but perhaps it might be held to be implied in the statement that the pursuer has held a decree for his debt against Cameron since 1851.

As the Lord Ordinary thinks the action must be dismissed on the second plea, it is unnecessary for him to dispose of the other pleas which have now been argued.”

Against this interlocutor the pursuer reclaimed.

Scott, for him, argued—1. It is not necessary to aver insolvency in the summons. The Act 19 and 20 Vict., cap. 79, sec. 10, does not require such an averment, as the Act 1621 may be pleaded in answer to the defences. Insolvency may be taken up by way of defence—2 Bell's Com., 183, 184, 186. 2. Even if such an averment were necessary, it is stated tempestive in the revised condescendence. In Bolden v. Ferguson, 3d March 1863, 1 M'Ph. 522, the Court allowed the record to be opened up and insolvency averred in the revised condescendence. 3. There were conclusions of count and reckoning applicable both to the capital and to the revenue, and in any view, these conclusions as to the revenue were not dependant on the conclusions of the reduction.

The Solicitor-General and A. Moncrieff, for the defender, were not called on.