Scottish Court of Session Decisions

The appellant claimed to be ranked on Millar's sequestrated estate for the sum of £1500, with interest, alleged to have been advanced in loan to the bankrupt in various sums at different dates. The trustee rejected the claim in hoc statu as not satisfactorily vouched, and the appellant appealed to the Sheriff against the trustee's deliverance. Under that appeal, a record was made up in terms of the Bankrupt Statute, and a proof allowed. In the course of the proof the trustee consented to rank the appellant for £1000, with interest, sufficient evidence having been adduced to satisfy him that that amount had been advanced by the appellant to the bankrupt; but he adhered to his deliverance as regarded the remaining £500. The appellant, in support of that item of his claim, founded upon a holograph acknowledgment by the bankrupt (who had absconded), dated 15th December 1867, in which he acknowledged to have received from the appellant £500 “upon loan and in the affidavit emitted by him as concurring creditor in the sequestration, he stated that the bankrupt was indebted to him in that sum as advanced in loan in cash upon the 15th day of December 1867.” The ground of objection maintained by the trustee, and the import of the proof, will be found in the argument of the parties infra. The Sheriff-substitute ( Hamilton), on considering the proof, instructed the trustee to rank the claimant for the £1000 admitted; quoad ultra he sustained the trustee's deliverance, and found the appellant liable in expenses. The appellant appealed that judgment to the Second Division.

Mair for the Appellant.—The document produced in evidence of the advance of the £500 is a good and valid voucher for that sum, and the trustee was bound to give effect to it and rank the appellant. The trustee's averment, that that document was ex post facto, and made in collusion with the bankrupt, was not proved. Such documents were not regarded with suspicion unless the parties were conjunct and confident, which was not the case here; for while the bankrupt was the illegitimate son of the appellant's wife, that constituted no relationship between the appellant and the bankrupt. The voucher was a good document of debt in re mercatoria and should be given effect to.

Trayner (with him Gifford), for the trustee. —The document founded on urns not in re mercatoria, and the whole circumstances proved in regard to it rendered it useless as a voucher. (1) The parties were confident if not conjunct. The bankrupt had acted as the appellant's agent, and it was now clear that the £500 for which said document was granted was not advanced in cash, but was granted as an acknowledgment of debt to that extent for sums uplifted by the bankrupt as appellant's agent and not accounted for. This fact, admitted by the appellant, contradicted not only the acknowledgment itself, but the appellant's affidavit. (2) No proof whatever had been adduced in support of the statement that the bank, rupt had uplifted or retained any such sum. (3) In a state of affairs made up by the bankrupt immediately before absconding, the appellant's claim is entered at £1000, and is repeated at that amount in a note of the claims added at the foot of the state, which is proved to have been made by the bankrupt and his agent when considering what amount of claims might be relied upon in support of the trustee nominated on behalf of the bankrupt in the event of a competition for the trusteeship. (4) The acknowledgment is dated 15th December 1867, but it is holograph, and does not prove its date. Besides, on the blotting paper in use in the bankrupt's office in Edinburgh at the time of his absconding in July 1868, there is a distinct impression of this acknowledgment, said to have been granted in Glasgow in December preceding. The inference was fair that the document had been manufactured on the eve of bankruptcy.

At advising—