FERRIER v CUNNINGHAME GRAHAM and his Trustees (Court of Session)

The late Sir John Lowther Johnstone granted two bonds in the English form for L.4000 each, conditioned for L.2000, to Mr Cunninghame Graham of Gartmore. Mr Graham afterwards assigned these bonds to Mr John White, merchant in Edinburgh. White having afterwards pursued the trustees of Sir John Johnstone for payment, the defenders were assoilzied, on the ground that the bonds were granted for money lost at play, contrary to the statute 9 Queen Anne.

Mr White's bankruptcy appeared to be hopeless, and there was no expectation of his estate being at all sufficient to meet his debts. But the statutory number of his creditors had concurred in granting him a discharge, which had received the sanction of the Court previous to the Jury trial.

He had therefore no longer any personal interest in the cause, which was carried on solely by the trustee, for behoof of his creditors.

The defenders, Mr Graham and his trustees, afterwards gave in a minute of reference ‘to the oath of the pursuer, John White, of the facts admitted to the defender's probation, as contained in the issues sent to the Jury.’

The Lord Ordinary pronounced the following interlocutor and note: ‘Finds, that if it shall turn out that John White is a discharged bankrupt, having no interest in this case, which has been wakened and insisted in by the trustee for his creditors, and that it is carried on solely for their behoof, it will not be competent to make a reference of the same to his oath of verity, as proposed by the defender,’ &c.