Scottish Court of Session Decisions

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* On reporting the prepared cause, the Lord Ordinary (Moncreiff) issued this note: “The complaint concludes for various findings of irregularity and neglect of duty, for penal interest, and forfeiture of commission, and for removal. It is reported as an Inner-House cause.

“The title of the complainer is objected to, and it is very unusual and remarkable. The complainer insists, 1. As executor of the bankrupt; and, 2. As assignee of a debt. As to the first, he has not stated that by any management there could have been a reversion; and when the Lord Ordinary put it to the complainer's counsel whether he could state that it would appear, by an investigation before an accountant, that any reversion could have arisen, he declined to say so. It certainly does appear to be a very novel thing, that a mere executor of the bankrupt, who can make no such statement of actual interest, should bring a complaint founded on irregularities—more especially inferring no particular penalties—where the creditors, having the only interest, are entirely satisfied, and that such an executor should insist for penal interest and forfeiture of commission, which the creditors do not ask. The second ground of title was confessedly acquired, in order to obviate doubt on the first. But the fact is now admitted, though originally evaded, if not meant to be denied, that the complainer actually paid £3, 1s. of price, besides £1, 15s. 2d. for the stamp, and an account to an agent, making in all £5, 9s. 2d. for a debt, the whole unpaid balance of which was only £2, 9s. 5d.; and the debt was so acquired after the original creditor had received three dividends, amounting to £5, 2s. 7d., on an entire debt of £7, 12s., and had approved of all the proceedings. A complaint raised in such circumstances, certainly bears strong marks of unfair and malicious purpose.

“There have certainly been some irregularities and omissions in regard to the provisions of the statute. But the Court will judge, 1. Whether, as executor, the complainer has any right to go on these, not averring the possibility of a reversion; 2. Whether, as assignee to a debt, he has a title to complain of a management which was approved of by his cedent; and, 3. If he has such a title, what shall be the effect of the omissions founded on, with the explanations given, in a case where all the other creditors are satisfied, and it is apparent that, in substance, the administration has been much more than usually successful and beneficial.

“It also appears that the statute has not been strictly observed as to the depositation in bank of certain small sums during short periods. But there has been no loss; and it has been calculated, that the entire amount of the penal interest, if exacted to the uttermost, would be about £5; and that the complainer's share of it would be somewhat less than one penny.

“In this state of the cause, the Lord Ordinary does not suppose that the Court will have much difficulty in disposing of it, with a due regard to the statute, and to the material justice between these parties.”