Glasgow Courier. — 1858-01-07 (Glasgow, Strathclyde, Scotland)

COURT OF SESSION-FIRST DIVISION-JArr. 5.  J. W G ttLD, Ferguson's Trustee, against A. ORR EWING IS; Co , Merchants, Glasgow,  This case was argued before the Court on the 9th November last, with reference to an interlocutor of Lord  Ardmillan, dismissing the action as not being brought on sufficient relevant grounds. Their lordships recalled that interlocutor in hoc stain, and remitted to the Lord Ordinary to appoint parties to give in issues to try the cense. They also found the defenders liable in expenses. The ease Clime up to-day on the report of the Lord Ordinary as to the issues proposed by the pursuer. The circumstance out of which the action arises is this The late Peter Ferguson, who was a foreign commission agent, was one of the Messrs Orr dr, Co's customers, and had a current account with them. The understanding or agreement on which they transacted was, that the price of the goods purchased by them in one month became due and payable not sooner than the last' cash day 'of the month following. In duly, 1853, Ferguson purchased goods to the amount of £914 Os Gd, which, according to the above arrangemetity became due on the 30th August, being the last cash day of that month However, Ferguson, on 26th August, came and paid the above £914 Os 6d, thereby anticipating the term of pay ment by three days. Ferguson disappeared immediately on doing this, and was soon after found drowned in the Clyde, having, it is believed, committed suicide. His affairs were hopelessly insolvent, and a seques:ration of his estates was made in October following, being within 4.2 dry)s of the payment in question. Tim trustee on his sequestrated estate seeks by this action to have the payment reduced under the Act 169 G, and as being a fraudtalent.preference at common law over his other creditors.  , The point argued to-day wee whether the question of 'the helevancy of the case of the pursuer should not be decided before sending the facts to a jury. Mr Macfarlane and Mr Young, for the defenders, con. tended that upon the showing of the pursuer on the record he had not a relevant case to go to a jury, and therefore to send such a case to a jury was not to advance it a single stage, because, although all the facts set forth by him were proved, the defenders would still contend that they were entitled ton verdict on the issue whether the payment was good in law. What the Court were called upon, therefore, to do was io hold that the facts were as the pursuer had stated them, and to say whether he was entitled to succeed or not in this action. The Dean of Faculty and Mr Penney, for the pursuer. admitted that the circunistance of a pa,tment being made in anticipation of the period when the debt wasdue, was not sufficient in itself to make it reducible, either under the act 1696 or at common law. Whether it was redlicible or not depended altogether upon the fact, whether the payment had been made in the ordinary course of business or not ; if not so anode, then it would be bad, as giving an undue preference to the particular creditor over the other creditors of the debtor. A condescendence of the particular facts and circumstances connected with the transaction was not essential to render such an action of reduction ielevabt, because the very fact of a payment being made in that way afforded a presumptioti that it was a dishonest proceeding, and intended to give an undue preference to one creditor. Here the payment in anocipation was made altogether without a motive, and Was to be presumed to be done fraudulently. Still, the ptusuer was not bound to charge the defender with fraud or collusion. The real complexion of the facts could only Inc developed on a trial; and it was, therefore, a case where a trial should take place before deciding the relevancy. The law would arise on the trial, and the case would be decided accordingly. The pnrsuer was ready to take a judgment on the relevancy, if the Court saw fit to decide the law first; but that was a thing entirely within the discretion of the Court to do or not as it Now fit.  Judgment postponed. Agent for the pursuer—A. Hamilton, W.S. Agents for the defenders—Campbell & Smith, S.S.C.