Scottish Court of Session Decisions

This was an action at the instance of William Steven, accountant in Dundee, trustee on the sequestrated estate of Charles Denoon Young, against Alexander Nicholl and Others, for reduction of a trust-assignation, dated in 1868, of three policies of insurance upon the life of the said Charles Denoon Young, two for the sum of £2000 each, and the other for the sum of £1000.

It appeared that Charles Denoon Young was sequestrated in 1856, when the creditors received a dividend of 2s. 6d. in the pound; and again, in 1862, when the creditors received 3s. 6d. in the pound. He was again sequestrated in 1874. It was further averred that Mr Young was insolvent in 1867. The trust-assignation under reduction bore to be granted by certain parties on the narrative that they stood vested in the policies of insurance assigned in trust, and the purpose of the trust was for behoof of Mrs Young (wife of the said Charles Denoon Young) in liferent and the children of the marriage in fee. The pursuer averred that the persons mentioned in the trust-assignation were not aware of their names having been used in such a transaction, or that the trust-assignation had been granted, until 1873, and that at the date of the trust-assignation the policies belonged in property to the said Charles Denoon Young, who at that time was insolvent.

The defenders alleged that Mr Young was solvent when the trust-assignation was granted, and generally denied the averments of the pursuers. They also alleged that the deed was granted in implement of the obligations in Mr and Mrs Young's marriage-contract.

The pursuers pleaded:—“(1) The trust-assignation

Page: 207↓

having been granted while the said Charles Denoon Young was, and knew himself to be, insolvent, fraudulently for the purpose of defeating the rights of his just and lawful creditors, the same ought to be reduced and set aside. (2) The said trust-assignation ought to be reduced in respect that the same was granted contrary to the provisions of the Act 1621, cap. 18, and to the prejudice of prior creditors of the said Charles Denoon Young. (3) The said assignation not having been known, intimated, or delivered to the trustees nominated in it, and not having been delivered to the beneficiaries under it, and no possession having followed upon it, the same is invalid, and cannot be founded on by the defender Nicholl as representing said trust.”

The defenders pleaded that, the pursuer's averments being unfounded in fact, they were entitled to absolvitor.

The defenders moved the Lord Ordinary to grant diligence to recover the documents mentioned in the following specification:—“1 The business and cash books of (1) Messrs D. and W. Robertson, iron merchants, Dundee; (2) Messrs Thomas B. Campbell & Sons, metal merchants, Glasgow; (3) Messrs Cowan & Co., paper-makers, Edinburgh; (4) Robert M'Tear, auctioneer, Glasgow; (5) Robertson, Ferguson &Co., metal merchants, Glasgow; and (6) William Smith, commission agent, 73 Renfield Street, Glasgow, from the beginning of the year 1866 to 5th October 1868 (the present time), that excerpts may be taken therefrom of all entries of transactions during said period between the said respective firms, or any of their partners, on the one part, and C. D. Young & Co., engineers, Perth, or Mr C. D. Young, engineer, Perth, on the other part. 2. All original accounts sales, accounts current, invoices, and correspondence connected with advances or loans by the said D. & W. Robertson, Thomas B. Campbell & Sons, and Cowan & Co., or any of the partners of these firms, to the said C. D. Young & Co., or C. D. Young, during the above period, or connected with consignments and securities held by the said D. & W. Robertson, Thomas B. Campbell & Sons, and Cowan & Co., or their partners, for such advances or loans. 3. The letter-books of the said several firms, that copies may be taken therefrom of all letters to the holders or assignees of securities on which the advances before referred to were made. 4. The books of the Commercial Union Assurance Company, London, that excerpts may be taken therefrom of all entries relating to the two policies of insurance Nos. 863, and 868, on the life of the said Charles Denoon Young. 5. The business and cash-books of Mr Melville Jamieson, solicitor, Perth, from the beginning of the year 1866 to 5th October 1868 (the present time), that excerpts may be taken therefrom of all entries of transactions during the said period between him and the said C. D. Young & Co., and C. D. Young. 6. The books of the Commercial Bank of Scotland for their agencies at Perth and Callander, that excerpts may be taken therefrom of accounts in name of the said C. D. Young & Co., C. D. Young, or Mrs C. D. Young, from the beginning of 1865 to the present time.”

The Lord Ordinary ( Curriehill) pronounced the following interlocutor:—

“17 th December 1874.—The Lord Ordinary having heard parties' procurators on the defenders' motion for a diligence against havers to recover the writings mentioned in the specification, No. 16 of process—Grants diligence for recovery of those mentioned in article 4 of said specification, and also those in articles 1, 2, 3, and 5, down to the date of the trust-assignation on 5th October 1868, and commission to the commissioners formerly named to examine the havers and receive their exhibits, the same to be reported on or before the 13th January next. Quoad ultra refuses said motion, and grants leave to reclaim against this interlocutor.”

Both parties reclaimed.

The pursuer argued—The diligence asked should not be granted, as the documents sought to be received would not be evidence. If the Court, however, thought that part of the diligence should be granted, the Lord Ordinary had exercised a wise discretion

Argued for the defenders—The defenders' case was that at the date of granting the trust-assignation Mr Young was solvent. To prove that it was necessary to get access to the books of the creditors to show the position in which at that time Young stood to his creditors. This was the more necessary as the pursuer, as challenger of the deed, had in his favour a presumption, arising from the fact of present bankruptcy, of insolvency retro to the date of granting the deed.

At advising—