Scottish Court of Session Decisions

This was a suspension by Alexander Noble, shipmaster, Fraserburgh, of a charge at the instance of Ann Noble or Campbell and Jean Noble or Hendry, with consent of her husband, of the sum of £19, 14s. 9 1 2d. The complainer was a shipmaster, and had granted a bill, payable 3 months after date, to a merchant in Fraserburgh for furnishings supplied to a vessel belonging to him (complainer). Meanwhile the merchant's estate was sequestrated, and the debt, for which decree had been obtained in the Sheriff Court of Peterhead by the trustee appointed upon the bankrupt estate, was assigned by him to Robert Anderson, writer in Fraserburgh. Anderson again assigned it to John Proctor, law-clerk in Fraserburgh. Each of these assignations, the complainer averred, was made without value. Proctor afterwards assigned to the two chargers, who were sisters of the complainer. That assignation, the complainer stated, was also without value; and it was further averred—“The charge given to the complainer does not deduce or set forth the charge in the original action and assignation by them of the said decree, nor has the complainer seen said assignations. The complainer has also reason to believe that the debt has been paid by some one of the other owners referred to in the charge.”

The complainer, inter alia, pleaded—“(1) The trustee on William Yeats Gray's estate having illegally assigned the decree charged on to Robert Anderson, writer, Fraserburgh, the chargers' title is vitiated in essentialibus, and is inept— vide 54 Geo. III. cap. 137, sec. 56, and the Bankrupt Act 1856; Murdoch on Bankruptcy, 3d ed. pp. 276, 277. (2) The charge is defective in respect it does not set forth the progress of the assignations by which the chargers got control of the said decree against the complainer.”

The chargers and respondents denied the statements of the complainer, and, inter alia, pleaded—“(1) The chargers being in right of the debt for which a charge has been given, and the charge being in every respect formal and regular, the note of suspension ought to be refused, with expenses. (2) The assignation by Gray's trustee to Anderson having been for value, is not vitiated in respect of 54 Geo. III. cap. 137, and Bankruptcy Act 1856.”

The Lord Ordinary in the Bill Chamber ( Gifford) pronounced the following interlocutor:—

“ Edinburgh, 30 th September 1876.—The Lord Ordinary having considered the note of suspension and answers thereto, with the productions, refuses the note, and finds the complainer liable in expenses, and remits the amount thereof to the Auditor to tax and report.

Note.—The complainer does not deny that he is justly due the debt charged for. The debt is constituted by decree in foro in the Sheriff Court of Aberdeenshire, dated 8th June 1870; and the complainer does not pretend that he ever paid any part of the sum decerned for. His averment that he ‘has reason to believe’ that the debt has been paid by ‘some one of the other owners’ plainly cannot be admitted to probation.

The debt thus constituted has been passed by three assignments, ex facie regular, and has been vested in the chargers, and they hold regular warrants as assignees to enforce diligence. The assignments are produced, and there does not appear to be any good objection to the procedure and diligence.”

The complainer reclaimed, and was allowed in the course of the hearing to amend his statement with reference to the assignation of the debt without value to “Robert Anderson, writer in Fraserburgh,” by the addition of the words “who was then the agent in the sequestration.” He argued—The assignation to Anderson was illegal, because it proceeded upon the purchase by the law-agent in the sequestration of part of the sequestrated estate. Such a sale would not give a title to an assignee in a question with the debtor.

The respondents argued—Such a sale was reducible, not null. There was no statutory provision against it. If the sale was bad, it was so only at common law, and in any event it had been confirmed by the creditors.

Authorities—2 Bell's Comms. (M'Laren's ed.) 344; Crichton v. Bell and Gillon, June 25, 1833, 11 S. 781; Robertson v. Adam and Others, February 20, 1857, 19 D. 502.

At advising—