Scottish Court of Session Decisions

In a competition for the office of trustee on a sequestrated estate, the candidates, Givan and Connell, respectively presented petitions for confirmation to the Lord Ordinary on the Bills (Mackenzie). Various objections were stated hinc inde to the votes in support of each, of which the two following were chiefly insisted in:—

I. Givan (the party competing) claimed to vote as a creditor on the estate to the extent of £101, 5s. 6d., being the amount of a promissory-note for £100, signed by the bankrupt, and by two other obligants appearing ex facie of the note as equally bound with him, and of the expense incurred in a process against these acceptors for payment, and in extracting the decree therein. The note and the decree were produced. The affidavit was dated 5th April, 1837, the sequestration having been awarded on 3d May, 1837. It referred simply to the debt as contained in a promissory-note, signed as above, stating “that no part of the said sum has been paid or compensated, nor does the deponent hold any security therefor other than the said promissory-note and said decreet.” It described the bankrupt as a person liable to sequestration under the 54 Geo. III. c. 137.

To this claim Connell objected, 1st, That the affidavit was dated a month prior to the date of the sequestration, and thus the claim was not supported by an oath of verity, such as was required by the Bankrupt Act, or sufficient to import that the sequestrated estate was liable for the debt in question; and, 2dly, That the affidavit bore no valuation of the security held by the claimant under the obligation of the two co-obligants, and did not deduct the value of such security, in terms of and as required by the statute. ¹

In answer, it was stated, 1st, That Givan was the petitioning creditor in the application for sequestration, and the affidavit was emitted in order to support that application, and, as it described the bankrupt as a person liable to sequestration under the statute, there was internal evidence of the purpose for which it was intended, and of its applicability to the sequestration in question. 2dly, That, although not appearing ex facie of the bill, it could be proved that the debt sworn to was the proper debt of the bankrupt, and that the other two obligants were not liable in any claim of relief, supposing that the full debt had been paid by him, but would have had a claim of relief against him for whatever sums might have been recovered from them; in which case Givan was not bound to value or deduct the security of the other obligants. ²

The Lord Ordinary sustained the objection.

II. David Bruce claimed to vote upon a debt by account produced with the affidavit. The account stated a variety of articles furnished to the bankrupt, and, inter alia, small quantities of spirituous liquors.

To this it was objected, that part of the account consisted of charges for spirituous liquors, the claim for which was made not actionable by the Tippling Act, and could not be brought forward judicially.

It was answered, that although these charges were not such as to afford a ground of action, there was nothing in the statute to prevent them from being founded on to the effect now proposed.

The Lord Ordinary sustained the objection to the extent of deducting the charges for spirituous liquors from the amount of the account.

_________________ Footnote _________________

¹ Mackersy v. Guthrie, March 7, 1829, ante VII. 556.

² Buchanan v. Dunlop, Feb. 24, 1827, ante V. 468 (new ed. 441).

Both of the above objections were taken to votes on behalf of Givan, who reclaimed.