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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mansfield v Maxwell [1835] CA 13_721 (15 March 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0721.html
Cite as: [1835] CA 13_721

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SCOTTISH_Shaw_Court_of_Session

Page: 721↓

Mansfield

v.

Maxwell
No. 225.

Court of Session

Mar. 15 1835

Ld. President

Thomas Mansfield (Anderson and Gavin's Trustee),     Pursuer.— Skene— Cuninghame. Maxwell and Company,     Defenders.— D. F. Hope— Sol.-Gen. M'Neill— Neaves. Thomas Mansfield (Renny's Trustee),     Defender.

Subject_Proof—Bankruptcy.—

1. Where no sufficient proof is offered that a bankrupt has received an effectual discharge, and that there is no prospect of a reversion, he is inadmissible as a witness in support of the trustee on his sequestrated estate claiming a debt alleged to be due to the estate. 2. Sederunt-book in the sequestration held insufficient proof, per se, of the discharge of the bankrupt, and of there being no reversion; and not rendered sufficient by the tender of a clerk of the trustee to prove that it was regularly kept.

Thomas Mansfield, accountant in Edinburgh, trustee on the sequestrated estate of Anderson and Gavin, merchants in Leith, raised an action against Maxwell and Company, corn-factors in Leith, and Archibald Bruce, accountant in Edinburgh, trustee on the sequestrated estate of the late John Renny of Phantassie. During the dependence of the action, Mansfield was elected trustee on Renny's estate in the room of Bruce. The summons set forth, that Anderson and Gavin agreed to sell 500 quarters of wheat to Renny in July, 1829; that it was a cash-transaction, and that when Maxwell and Company, corn-factors in Leith, presented Renny's order for delivery in their favour, the sellers refused delivery, except on receiving payment, and finally agreed to give delivery, only on the express condition stipulated with Renny, that the whole price should be paid when delivery was taken, or at least before it was completed; that the terms of this agreement were known to Maxwell and Company; that 444 quarters were accordingly delivered to Maxwell and Company, and soon thereafter the sellers learnt the fact of Renny's stopping payment, and refused farther delivery; that, before the delivery began, Renny had gone to England to avoid his creditors, and was irretrievably insolvent; that his embarrassments were known to Maxwell and Company, who were in advance for him, and wished to cover themselves by getting possession of the wheat; that Renny's conduct was fraudulent, and rendered him liable in restoration of the wheat, or repetition of the price; and that Maxwell and Company, being privy to the whole circumstances, were liable in like manner. The summons concluded for repetition of the price.

Maxwell and Company stated, that they, in the usual course of their business, came under advances for Renny, part of which was drawn against the 500 quarters of wheat then in the hands of Anderson and Gavin; that they got an order for delivery, and obtained delivery of 444 quarters, after which they rejected the remaining 56, as being of inferior quality; that during all this time Renny's credit was undoubted, and the subsequent stoppage was wholly unexpected by them. They therefore pleaded, that, as they had fairly received the wheat in the ordinary course of business, and had come under advance for it, they were entitled to apply the proceeds of it for their own relief.

No appearance was made for Renny's trustee.

The following issues went to trial:—

“It being admitted that the pursuer is trustee on the sequestrated estate of Anderson and Gavin, late merchants in Leith, and that the defender, Thomas Mansfield, is also trustee on the sequestrated estate of the said John Renny, and that the defenders, Maxwell and Company, are, and in the months of July and August, 1829, were, corn-factors in Leith;

“Whether, on or about the 22d day of July, 1829, the said Anderson and Gavin sold to the said John Renny 500 quarters of wheat, or about that quantity; and whether it was understood, and agreed that the property of the said wheat should not be transferred, and the sale completed, until the price was paid; and whether, between the 3d and 7th days of August, 1829, and before the said price was paid, a part of the said wheat, amounting to about 444 quarters, was delivered to the said Maxwell and Company, as agents of the said John Renny; and whether, at the period last aforesaid, the said John Renny was insolvent: and whether the said Maxwell and Company wrongfully retain the said wheat, and are indebted, and resting-owing the pursuer, as trustee foresaid, in the sum of £1598, 8s., or any part thereof, with interest thereon, as the price of the said wheat delivered as aforesaid?

“Whether the said Maxwell and Company, knowing the terms and conditions of the said agreement—and that the said price was not paid, or knowing that the said John Renny was insolvent, took delivery of the said wheat, and wrongfully retain the same, and are indebted and resting-owing to the pursuer, as trustee foresaid, in the said sum of £1598, 8s., or any part thereof, with interest thereon, as the price of the said wheat delivered as aforesaid?

“Or,

“Whether, in taking delivery of the said wheat, the said Maxwell and Company acted as corn-factors, in the ordinary course of business, having received the said wheat as a consignment, and having made an advance to the said John Renny of the sum of £2000, or any part thereof, on the faith of such consignment?”

At the trial, the pursuer tendered John Hodgson Anderson, one of the partners of Gavin and Anderson, as a witness.

Dean of Faculty, for Maxwell and Company, objected, on the ground of interest.

Cuninghame, for Pursuers, tendered the sederunt-book in the sequestration of Anderson and Gavin, to prove that the bankrupts were discharged; that there was not the least prospect of reversion, but, on the contrary, a deficiency, amounting to 19s. per pound. In these circumstances, the proposed witness was completely free of interest in the issue of the suit, and no objection could lie to his admissibility. 1

Dean of Faculty answered.—The sederunt-book is merely the statement of the trustee, the pursuer of this action. The claim in this action is the chief fund for paying the creditors on Anderson and Gavin's estate. The pursuer's own statement is not enough to render the proposed witness competent. He must prove that the witness is effectually discharged, and that there can be no reversion, which cannot be shown satisfactorily, unless an accountant has examined and verified the states in the sederunt-book. The sederunt-book is good evidence against the trustee, but not for him.

Skene, in reply.—It is against the trustee that the sederunt-book is to be used in proving that the bankrupt has got an effectual discharge, good against all his creditors and their trustee.

_________________ Footnote _________________

1 Ferrier, Feb. 10, 1831 (ante, IX. 419).

Lord President.—I think the witness inadmissible. The sederunt-book, or statement made by the trustee himself, cannot be used in his own favour. Besides, even if there were no chance of a reversion to himself, the bankrupt has an interest to enlarge the fund for the benefit of his creditors. On both grounds, I refuse to admit the witness. *

The pursuer tendered a clerk of the trustee, to prove that the sederunt-book was regularly kept.

Dean of Faculty objected, that this was irrelevant, as the objection previously taken to that book, as evidence per se, was well founded, whether the book was regularly kept or not.

The Lord President sustained the objection.

It appeared, inter alia, that Maxwell and Company had shown no haste in getting possession of the wheat, and had rejected the last 56 quarters, as being of inferior quality to what Renny had a right to expect—that, as to part of the 500 quarters of wheat, belonging to a person named A. Hill Renny, Anderson and Gavin had, at one time, intimated the sale, not as for ready money, but on a credit of three months, and had charged a del credere commission against him; and it was but lately he was informed of their being themselves the purchasers of some of his wheat; but no del credere should be charged for any thing bought by themselves. It also appeared that, after the present action was in contemplation, one of these gentlemen went to J. Renny, and got up some of their letters regarding this transaction, and destroyed them.

The Lord President, in charging the jury, adverted to this proceeding as highly reprehensible, and as almost warranting Maxwell and Company to put any construction they chose on the supposed tenor of these letters, as affecting the question now at issue.

Verdict for the defenders, Maxwell and Company.

Solicitors: R. Strachan, W. S.— J. Murdoch, S. S. C.—Agents.

_________________ Footnote _________________

* An objection, on the same ground, to William Gavin, the other partner, was sustained.
SS 13 SS 721 1835

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