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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petition Smith for Recal of Smith's Sequestration [1867] ScotLR 4_28 (18 May 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0028.html Cite as: [1867] SLR 4_28, [1867] ScotLR 4_28 |
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Page: 28↓
Subject_Bankruptcy—Recal of Sequestration—Affidavit—Voucher.
Circumstances in which held that a sequestration was properly awarded upon an affidavit and relative voucher, ex facie unobjectionable, and an accounting for the purpose of showing that the debt upon which sequeatration was obtained refused as incompetent.
This is a petition for the recal of the sequestration of the late Thomas Smith, spirit dealer, Edinburgh, presented by his son, a pupil, with concurrence
Page: 29↓
of his tutor ad litem appointed by the Court. Sequestration of the deceased's estate was obtained on the 10th of August 1866, on the petition of Charles Dick & Son, brewers, Edinburgh, upon a bill amounting to £103, 10s., payable four months after date, and bearing date 10th August 1863. The petitioner stated that Smith, having found himself in embarrassed circumstances, called a meeting of his creditors, which was attended by the petitioning creditors, and that they, along with the other creditors, agreed to accept of a composition of 4s. in the pound, and thereby discharged all prior claims; and therefore it was maintained they were not entitled to apply for sequestration. The respondents, on the other hand, said that the said composition had never been paid by Smith, and they accordingly pleaded their right to keep up the whole debt due by Smith to them, and to rank for it in the sequestration. The petitioner further stated that upon the death of his father in November 1864, the respondents had lodged a claim for £111, 3s. 611. with his executrix, and which was paid to them. This was admitted by the respondents. The petition for recal contained the following additional statement:— “The said bill, which is dated 10th August 1863, is for the sum of £103, 10s., and is payable four months after date. It was not subscribed by the said Thomas Smith, and the words “Thomas Smith” written therein were not written by him. He (Mr Smith) never saw the said bill, and never knew of its existence. It was not delivered by him to the respondents, and they became possessed of it without his knowledge. No value was given by the respondents for that bill.
On 13th February 1867 the Lord Ordinary ( Mure) pronounced the following interlocutor:—
“The Lord Ordinary having heard parties' procurators, and thereafter considered the closed record and productions; Before answer, allows the petitioner a proof of his averment that the bill for £103, 10s. on which sequestration proceeded was not the writ of the deceased Thomas Smith, and to the respondents a conjunct probation; Appoints the proof to take place on Thursday the 7th day of March next, at 10 o'clock A.M., and grants diligence against havers and witnesses. One word delete.
“ David Mure.
“ Note.—As the bill and relative affidavit on which sequestration are awarded are ex facie free from all objection, the Lord Ordinary does not, as at present advised, think it would be competent to allow the petitioner to enter into a general accounting with the respondents, in order to show that they were not creditors of the late Thomas Smith to the amount of the bill in question, and that the sequestration ought on that account to be recalled; But if the petitioner can show that the bill was not signed nor granted by the deceased, or, in other words, is a forgery, the Lord Ordinary is disposed to think that that will be a sufficient ground for recalling the sequestration.
“D. M”
The petitioner then abandoned his allegation that the bill referred to in the petition for sequestration was not the genuine writing of the bankrupt, whereupon the Lord Ordinary discharged the order for proof and circumduced. The Lord Ordinary thereafter pronounced the following interlocutor:—
“ 8th March 1867.—The Lord Ordinary having resumed consideration of the Closed Record and proceedings: Finds that there is no sufficient reason for recalling the sequestration; Therefore refuses the petition, and decerns: Finds the respondent entitled to expenses, of which appoints an account to be given in, and remits the same, when lodged, to the auditor to tax and report.
“ David Mure.
“ Note.—The challenge of the genuineness of the bill, founded on by the petitioning creditor in proof of his debt, having now been given up, the case falls to be disposed of on the footing that the affidavit and relative voucher on which sequestration was awarded were ex facie unobjectionable. And as the Lord Ordinary on further consideration adheres to the opinion indicated in the note to his interlocutor of the 13th of February, as to the incompetency of allowing the petitioner to enter upon a general accounting as to transactions between the petitioning creditor and the bankrupt, going back to the year 1862, with a view to the recal of a sequestration duly awarded in terms of the statute, he has refused the petition.
“D. M.”
The petitioner reclaimed.
Mair, for him argued—The petitioner is, de plano, entitled to recal of the sequestration in respect of the admissions of the respondents as to the composition which the creditors agreed to take from the bankrupt, and which discharged the original debt of the respondent, and also as to the payment to the respondents of the debts claimed by them from the executrix. At any rate, the petitioner is entitled to an inquiry into the circumstances set forth in the record, in order to have it ascertained whether the composition was paid, and whether any debt was due to the respondents. Milne v. Milne, June 13, 1850, 11 D. 1007.
Gifford and Mackintosh, for respondents, were not called upon.
The Court agreed with the Lord Ordinary in holding that the procedure was regular, and that the sequestration was properly awarded upon an affidavit and relative voucher, which was ex facie unobjectionable. They further concurred in holding that it was incompetent to allow the petitioner an accounting with the petitioning creditors; and even if that were competent, there was nothing to induce the Court to follow that course, because there was nothing auspicious in the statement of tire petitioning creditors, and much that was improbable in the statement of the petitioner for recal.
Agent for Petitioner— W. Officer, S.S.C.
Agent for Respondents— George Cotton, S.S.C.
