Scottish Court of Session Decisions

The Lord Ordinary ( Lee) refused the petition.

“ Note.—In this case it is disputed by the bankrupt that the petitioner is a qualified creditor, and the question is whether his affidavit and claim sufficiently instruct that fact to support the petition. It is true that an open account duly sworn to has been held sufficient. But there is a peculiarity in the terms of the oath in this case, inasmuch as it ‘reserves claim for the hire of each machine referred to in account, at rate of £1 sterling per week, from the dates when same were supplied.” This shows that there is some ambiguity in the petitioner's claim. It is not the case of goods supplied upon open account in the ordinary course of trade. There is an implied admission that the articles may not have been furnished as by a seller to a purchaser, and on such a footing as to transfer the property. And as it is denied that this was so, and the petitioner's letters (the genuineness of which was not disputed) lend considerable support to the denial especially as regards the omnibus, I am of opinion that the affidavit and claim are not sufficient.

In arriving at this conclusion I assume that where the oath is sufficient the Court has no discretion as regards awarding sequestration, excepting in very special circumstances (see Campbell v. M'Farlane, 24 D. 1097, per Lord President). But it is undoubtedly within the functions of the Lord Ordinary on the Bills or the Sheriff to see that the petitioning creditor is qualified in terms of sec. 13 of the statute ( Simpson v. Myles, Nov. 8, 1881).”

The petitioner reclaimed, and argued—The reservation of a claim for hire did not spoil the affidavit. The contract disclosed was an ordinary one, being in its inception one of hire, which might be converted into one of sale if the hirer wished it— Cropper & Co. v. Donaldson, July 8, 1880. The account was a sufficient voucher— Laidlaw v. Wilson. January 27, 1844, 6 D. 530; Simpson v. Myles, November 8, 1881, 9 R. 104; Knowles v. Crooks & Balgarnie, February 1, 1865, 3 Macph. 457.

The terms of the petitioner's letters referred to in the Lord Ordinary's note were not before the Inner House.

At advising—

Lord President—I think it is very much to be regretted that the petitioning creditor here should have put his affidavit in this shape, but I think it is impossible to resist the conclusion at which the Lord Ordinary has arrived. The petitioner says that he reserves a claim of £1 per week for the hire of the goods said to have been sold on the 5th and 8th of June, and that hire at that rate is to run from this date, when according to the rest of the affidavit the sale was made. These two things are quite contradictory. If there was a sale on the 5th and 8th of June, and the goods were delivered on those dates, I think it is quite impossible that there can be any claim for hire. The two contracts cannot stand together. It is quite an ordinary arrangement to deliver an article upon a contract of hiring, with a stipulation that the party hiring the instrument or carriage, or whatever it may be that he has got, may convert the contract into one of sale if after possessing for a time he desires to acquire it in property. From the terms of this affidavit, however, it is plain there could be no contract of sale as at the date of delivery, for the goods are stated in that reservation to have been delivered upon a contract of hiring. There may have been an arrangement that the hirer was to convert the contract into a sale, but the terms of that arrangement are not disclosed. I think it is impossible to sustain this affidavit, and that therefore we should adhere.

Lord Deas and Lord Mure concurred.

Lord Shand—I am of the same opinion. There is no doubt that this affidavit would have been in

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