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Cite as: [1835] CA 13_472

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SCOTTISH_Shaw_Court_of_Session

Page: 472↓

Baillie

v.

Young No. 151.

Court of Session

2d Division T.

Feb 14 1835

Ld. Moncreiff, Lord Justice-Clerk, Lord Medwyn, Lords Glenlee, Meadowbank.

James Baillie, Advocator.— D. F. Hope— Buchanan. William Young, Respondent.— Sol-Gen. M'Neill— Cheape.

Subject_Bankruptcy—Sequestration—Prescription.—

1. A bankrupt discharged under a composition-contract not barred from pursuing a debt alleged to have been due prior to the sequestration, by his not having given it up in his states of affairs in the sequestration, sworn to by him in the usual manner. 2. Claim which held neither to fall under the quinquennial prescription of the act 1669, nor the triennial prescription of spuilzies.

The estates of the respondent, Young, were sequestrated posterior to the year 1826, and he was discharged under a composition contract. The advocator, Baillie, had not claimed as a creditor pending the sequestration, but he afterwards claimed from the trustee the composition effeiring to a debt alleged to be due him by. Young, which was allowed and paid by the trustee. No debt had been given up by Young in his states of affairs in the sequestration (which were sworn to in the usual way), as owing to him by Baillie; but, in September, 1831, subsequent to his discharge, he raised an action against Baillie before the Sheriff of Lanarkshire, setting forth, that he was “justly addebted and resting-owing to the complainer the sum of £84 sterling, being the agreed on, or at least moderate and reasonable price of a quantity of cast-iron rails belonging to the complainer, and carried away from the Omoa Iron Works by the said James Baillie, conform to a particular account herewith produced, and held as repeated, brevitatis causa;” and concluding for payment. In the record, Young stated the cause of action thus:—“That, on the 4th July, 1826, or on one or other of the days of that month and year, at the hour of between three and four in the morning, or at all events very early in the morning, the defender, or persons employed by him, without any authority from the pursuer, carried off from the Omoa Iron Works a large quantity of cast-iron rails, the property of the pursuer, and retained possession of the same.” He also averred, “That, at the time the said rails were carried off as aforesaid, 8s. per cwt. was a moderate and reasonable price, and such as was given at the time for rails of the description and quality of those carried off.”

These statements were denied, and the Sheriff having allowed a proof before answer, Baillie brought an advocation under the 40th section of the judicature act; but, at the same time, instead of proceeding to have the cause tried by a jury, he maintained, that there was no room for admitting a proof, all action being, as he contended, excluded, on the grounds thus stated in his additional pleas in law:—

“1. The respondent is barred, personali exceptione, from insisting in the action; because the claim on which the action is laid is libelled to have existed prior to the time when his estates were sequestrated, and was not specified in any state of his affairs under the sequestration, by which the whole estates were vested, for behoof of his creditors, in a trustee; 54 Geo. III. cap. 137, sec. 25, 29, 33.

“2. The respondent is not reinvested in the right of action, and has no sufficient title to pursue.

“3. The claim in the libel, which is for an alleged debt of £84, said to be ‘resting-owing’ to the pursuer as the ‘agreed on’ or moderate ‘price’ of a quantity of cast-iron rails, has fallen under the quinquennial prescription, and is not proveable except by the advocator's writ or oath; 1669, c. 9.

“4. An agreement having been libelled, and a price concluded for in the libel, it was not competent for the respondent to change his ground of action in his condescendence without any amendment of the libel, and to state, that the rails had been carried off ‘without any authority,’ or for the Sheriff to admit that statement to probation.

“5. The claim, whether, as laid in the libel, for a debt resting owing, or in the condescendence, for the moderate and reasonable price of the rails, has fallen under the prescription of the act 1669, c. 9, or is excluded by the act 1579, c. 81, and the respondent's taciturnity, and payments to the advocator as his creditor.”

To this it was answered—

“1. and 2. The respondent was completely re-invested by the discharge under the composition contract, and the omission to give up in the sequestration the debt in question, the ground of which, it was alleged, had not then been discovered, can never have the effect of liberating the debtor by whom it was actually due.

“3. and 4. The summons does not truly libel any agreement of sale, so as to bring the transaction under the act 1669, or render the statement on the record inconsistent with the summons.

“5. The respondent's claim being for the value of goods carried away without any bargain or agreement, does not fall under the quinquennial prescription, as established by the act 1669, c, 9. Neither does it fall under the prescription established by the act 1579, c. 81, with regard to spuilzes, which, as interpreted in practice, applies only to certain circumstances with regard to the way in which the damage in a spuilzie is estimated and proved, which have no application to the present case.”

The Lord Ordinary pronounced this interlocutor, adding the subjoined note. ^*

“Advocates the cause; repels the first and second additional pleas in

_________________ Footnote _________________

^* “1. Though the summons is awkwardly expressed, the substance of it, as describing the cause of action, is clear enough, viz. that a quantity of iron rails, the property of the pursuer, were carried off by the defender, and that he is resting owing the sum of L.84 as the price or value of these articles. It says, indeed, ‘the agreed on, or at least moderate and reasonable price.’ What the framer of the summons referred to in the words ‘agreed on,’ does not appear. It may have been a communing after the abstraction, or perhaps the original price. But it is clear that there was no intention to libel an agreement for a sale, the words which follow being inconsistent with that idea. The statement in the first article of the condescendence, therefore, is perfectly consistent with the summons, and clearly states the ground of action.

“2. The Lord Ordinary is of opinion that the respondent is not barred from insisting in this claim by the proceedings in the sequestration. It is clear that in virtue of the discharge by the composition contract, which, though not produced, is expressly admitted and averred by the advocator in the record (article four of defender's statement), the respondent was fully reinvested in all his estate, whatever it might be. For by the decree of the Court the bankrupt is entirely discharged, except as to the payment of the composition, and the sequestration is declared at in end. But, as he is reinvested, the Lord Ordinary conceives that the circumstance of a claim competent to him having been accidentally omitted in the state given up to his creditors, cannot bar him from making it effectual. If fraudulent concealment were averred, it might be a ground for reducing the composition contract. But fraud is not averred in this record; and, as the Lord Ordinary understands the affairs of the bankrupt to have been extensive and complicated, it is othing surprising that such a thing should have been omitted. There is nothing in the statute to infer that the oath interposed to the state ‘to the best of the bankrupt's knowledge,’ shall afterwards be pleadable by a real and true debtor against the payment of the debt either to the trustee during the sequestration, or to the bankrupt after discharge by composition. The bankrupt is liable to the pains of perjury for wilful false swearing; and the discharge may be reduced on fraudulent concealment. But the oath will not bar his action for recovering any part of his estate. This seems to be materially different from the case of a bankrupt or his cautioners, as in Atkinson, &c. v. Walls, February 22, 1833, allowing a debt to be stated in the proceedings before the Court, and after the discharge disputing the amount of it. The matter is there fully and judicially put in the view of the parties; and if, with the acquiescence of the bankrupt and his cautioners, the contract is settled on that footing, they ought not to be allowed afterwards to dispute the debts. But a bankrupt may have claims which are wholly unknown to him at the time he makes up his state; or, in complicated transactions, he may, with perfect bona fides, and after the greatest care, omit claims which do not arise on written documents of debt, but from facts such as that here libelled. Being reinvested, his title of action is clear; and how far he may be still liable to account to the creditors, is not hujus loci.

“If the advocator had been purely a third party, the plea would be jus tertii, as held in the case of Chalmers v. Taylor, November 20, 1832. But here he was a creditor, and has been paid by composition. The Lord Ordinary does think that this may possibly raise a question in equity as to him in case the constitution of the debt be proved; and therefore he has left that open by reservation. But still there seems to be no bar to the action.

“3. The Lord Ordinary is clearly of opinion that no prescription applies to the case. The quinquennial prescription of the act 1669, c. 9, does not apply, because the action is not truly an action founded on any bargain as to moveables; and, taking the case as an action on a spulzie, the triennial prescription of spulzies does not touch it, because it is a fixed point that that prescription does not affect a simple action for restitution and ordinary damages, but only excludes the claim for violent profits, and the privilege of proving the case by the pursuer's own oath. Ersk. iii. 7, 16.

“The Lord Ordinary thinks it unfortunate that the advocator should not have allowed the proof to be taken before advocating. For now that the case has been advocated on the 40th section of the statute, he is of opinion that though that provision is not imperative to render trial by jury necessary, yet, as the cause must remain in this Court, the question of fact is such that it must be remitted to a jury. But before doing so, he has thought it proper to exhaust the preliminary questions.”

law for the advocator and defender, in so far as they are stated as constituting a bar to the action; reserving any question as to the effect of the advocator's claim as a creditor in the sequestration of the respondent's estate, in case the debt here sued for shall be found to be in other respects just and resting-owing: Repels the pleas of prescription stated in the third and fifth additional pleas; and repels also the fourth additional plea, and all other pleas stated in bar of proof: Finds that as the existence of the debt is denied, the cause must be remitted to proof. But before farther answer, appoints the cause to be enrolled; and reserves the question of expenses.”

Baillie reclaimed.

Lord Justice-Clerk.—There is nothing objectionable in the interlocutor, understanding it, as I do, to reserve all right to the advocator to reduce the composition contract, and to claim his share of it as a creditor. The only question is, if the respondent is barred from insisting in the action to the effect of constituting the debt. The knowledge of the alleged dilapidation is averred to be a late discovery, and it would be strange if these oaths, to the best of a man's knowledge and belief, were to exclude a claim subsequently discovered.

Lord Medwyn.—I agree there is nothing to exclude the action, though it may materially affect what is to be due under it. I think there is strong presumption of concealment, but I would listen with great difficulty to any plea of this kind in bar to the trial by jury by the party bringing the cause up for that purpose; and, on the whole, I think the reservation sufficient.

Lords Glenlee and Meadowbank concurred.

The Court accordingly adhered.

Solicitors: John Cullen, W. S.— Thomas Leburn, S. S. C.—Agents.

SS 13 SS 472 1835