HARROWER'S TRUSTEES v COOPER and his TRUSTEES (Court of Session)

Cooper having become insolvent, but not being rendered legally bankrupt, conveyed his whole real and personal estate in trust, with a power of sale, for payment of his debts. The trustees took infeftment; and were in the course of bringing the heritable property to sale, with concurrence, it was said, of nearly all the truster's creditors.

Harrower's trustees, however, were non-acceding creditors; and having brought an action of adjudication against Cooper, they moved the Lord Ordinary for an order for the statutory intimation.

The Lord Ordinary verbally reported the case ‘with reference to the points whether intimation must be ordered before parties can be heard at all in the cause, and whether, if they can be heard at all, the statement of the defenders afforded ground for refusing to order intimation.’

Lord Glenlee observed—If a party can shew instanter that there are no grounds for adjudging, certainly he may stop intimation; but, if the fact be otherwise, intimation must take place. It is a point perfectly settled, that a non-acceding creditor is entitled to adjudge—to what effect is a different question—and on this principle, that the granter of the trust is not entirely denuded. It is not an objection to a posterior adjudication that a prior one will render it unavailing; and a voluntary conveyance in trust cannot have a stronger operation in favour of the acceding creditors.

In this opinion the other judges concurred; and intimation was accordingly appointed to be made in terms of the statute.