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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brand v Barbour [1835] CA 13_835 (27 May 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0835.html Cite as: [1835] CA 13_835 |
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Page: 835↓
Subject_Bankruptcy—Sequestration.—
Circumstances which held to import the ranking of a claim on a sequestrated estate, so as to make the trustee liable for the dividend effeiring thereto, to the exclusion of all objections on the merits of the claim.
The estates of William Fergusson in Millmark were sequestrated in December, 1803, and the respondent, Barbour, appointed trustee thereon. The whole claims lodged amounted to £1774, and among them was one by the late William Gillespie for £445, 17s. 6d., being the amount, with interest to the date of sequestration, of two bills held by him, on which Fergusson was an acceptor. This claim was accompanied by the grounds of debt, and an oath of verity. There was no judgment of the trustee entered in the sederunt-book sustaining the claim; but neither, on the other hand, was there any entry rejecting it, or containing any objection to it; and, in 1807, the name of Gillespie, with the amount of the debt, was inserted in the sederunt-book alongst with the other creditors. In 1809, at a meeting of the trustee and commissioners, they declared that the clear balance would pay six shillings in the pound upon the whole debts due at the date of sequestration, and they directed the trustee to make out a scheme of division, and advertise a dividend accordingly. In fixing this dividend, the debt of Gillespie was obviously
In answer, Barbour stated certain objections to the claim on its merits, and a plea of compensation, and contended, that he was not precluded from maintaining objections to the claim, inasmuch as there was no judgment ranking it, and nothing equivalent thereto.
The Lord Ordinary pronounced this interlocutor, adding the subjoined note: *—“Finds, that the respondent, James Barbour, having ranked the deceased George Gillespie as a creditor for £445, 17s. 6d. sterling on the sequestrated estate of William Fergusson, on which he was and is trustee, and this ranking not having been set aside, is bound to account to the petitioner for the dividend; and that having neither paid the said dividend, nor placed it in any bank, he is liable in penal interest, under the 43d and 45th sections of the 54 Geo. III. cap. 137; finds the trustee liable personally in the expenses of this branch of the discussion; and, quoad ultra, appoints the case to be enrolled after this interlocutor shall become final.”
_________________ Footnote _________________
* “The respondent objects to the competency of the complainer being allowed, after the remit from the Court, to amend the petition, to the effect of founding on an additional clause in the statute, and of correcting clerical blunders in the description of the bills. The Lord Ordinary has not sustained this, because he thinks that the Court would have allowed these amendments, and that their only being proposed after the remit, does not preclude their being received by him.
“Certain objections are also stated by the respondent to the debt, and in particular to the mode in which the bills, on which the ranking was claimed, were protested. The Lord Ordinary is of opinion that all this is excluded by the fact of the ranking.
“Lastly, compensation is pleaded. The interlocutor has been framed so as not to exclude this, or any thing of the kind which may be competently urged, after the liability is fixed.
“As to the liability, it is not free from difficulty, owing partly to the irregularities of the trustee, and partly to the long delay of the creditor in complaining. The case is rested in the petition, on the fact, that the creditor was ranked; and if he was, the consequences follow, of course, for it is admitted that the dividend has neither been paid, nor set aside in any bank. But the fact of the ranking is denied, and this constitutes the defence. If the trustee had acted with any regularity, there could scarcely be a doubt on this subject; but he has so managed as to leave it not at all clear. On the one hand, he says that the debt was not due; that no judgment was ever pronounced in its favour; and that it is not in the scheme of division. On the other hand, the facts are, 1st, That a regular claim and affidavit was lodged in 1803. 2d, That, in 1807, the creditor's name and debt are marked in the sederunt-book (p. 94) in the list of debts claimed and oaths. 3d, That there was no judgment rejecting this claim. 4th, That, in the scheme of division made out in 1809, the name of the creditor and the amount of the debt are set down (sederunt-book, p. 100). 5th, That this scheme was intimated to the claimant as the one that was to be acted upon by public advertisement. 6th, That there never was any objection. What the respondent relies on is, 1st, The want of any formal and direct approval of the claim. 2d, That in the scheme the sum, instead of being first inserted in a column meant to contain the original debts, with the amount of the dividend drawn out into another column, as in other cases, stands marked only once, and this in the wrong column, the full claim being marked in the dividend column.
“The Lord Ordinary does not think that these circumstances justify the creditor being now told that his claim was rejected. If this had been really meant, it is difficult to imagine how his name and debt should not only be entered among the list of debts and affidavits lodged in 1807 (four years after the bankruptcy), but should also be inserted at all in the scheme in 1809, which scheme was advertised as the one on which the creditors were to be paid, and was acted upon in all other cases, and forms the very last entry in the sederunt-book. If the creditor bad then complained to the Court that his claim had been rejected, the trustee might fairly have referred to these circumstances to show that it had been admitted. He has brought himself within the reach of the case of Millar v. Ure, 27th January, 1824 (reversed no doubt, but only on its facts, not its principles), by misleading the claimant to believe that he was ranked.
“He attempts to deny the genuineness of the entry in the scheme; but his statement (answers to Article 11 of condescendence) is very weak and entitled to no credit. He says that the sum ‘appears’ to be a late entry. To the Lord Ordinary it has no such appearance. But is not the trustee responsible for such entries in the original sederunt-book? It would have been desirable to see how it stood in the process copy, but no copy has ever been lodged. The name of the creditor, however, is admitted to be correct. And this is enough; for, if he was marked as an admitted claimant in the scheme, there could be no doubt about his debt.
“It is important to observe, too, that the total debts are under £1800; that Gillespie's amounted to £445, nearly a fourth of the whole; and that the dividend of 6s. per pound seems to be only arrived at by taking this claim into view.”
Barbour having reclaimed,
The Court pronounced the following interlocutor:—“The Lords having advised the case, and heard counsel for the parties, adhere to the interlocutor of the Lord Ordinary submitted to review, in so far as his Lordship ‘finds that the respondent, James Barbour, having ranked the deceased George Gillespie as a creditor for
Solicitors: Wm. Stewart, W. S.— Wm. M'Kissock—Agents.
