LADY GRANT v THOMAS HALL (Court of Session)

The defender afterwards becoming insolvent, executed, upon 8 September 1828, a trust-deed, for behoof of his creditors, of his farm stocking, crop, and all his other property, except the lease itself, which it was not competent for him to convey. The trustees accordingly sold part of the stocking and other effects, and paid arrears of rent; and security was found to the landlord for that due at Whitsunday 1829. Soon after granting the trust-deed, the defender made an offer of a composition of 15s. in the pound, which was, at the time, accepted by many of the creditors.

The defender offered to prove in the inferior court, that, before the action was raised, all his creditors had agreed to discharge him for a composition; that he had been discharged accordingly, and the trust-deed was in fact at an end; and that he had stocking on the farm worth L.260, or equal to two years' rent, independently of the funds required to pay his composition.

The Sheriff, ‘in respect of the condition in the lease, and the acknowledgment contained in the letter of the defender condescended on, as well as what is acknowledged on the record, and proved in process, and that, according to the decisions of the Supreme Court, the matter offered to be proved by the defender is not relevant, decerns against the defender as libelled; reserving to the defender, his trustees, or creditors, as the case may be, such claim for surplus rents as may be competent to them.’

In conjoined processes of advocation and suspension, the defender pleaded —1. This action was incompetent before the inferior court, being, both in form and substance, a declarator of forfeiture of a real right. The conclusion of the summons for removing depended on the previous declaratory and reductive conclusions; and the Sheriff could not have decided even on that conclusion, until the others had been disposed of in the pursuer's favour, by the competent court; Young v. O'Rourk, 25 May 1826, S. & D. ; Horn v. Maclean, 19 Jan. 1830.

The creditors having agreed to accept a composition before the action was brought, there was then no trust in operation or in existence to which the clause in the lease founded on could be applicable, and consequently the action was incompetent and irrelevant.