Scottish Court of Session Decisions

In a competition between Lizars and Burke for the office of trustee on the sequestrated estate of Stirling and Kenney, objections were stated to the vote of Mr Low, trustee on the sequestrated estate of Alexander Robertson, W.S., by Lizars, who, if this vote were not counted, would fall to be held the party elected. Low's claim was founded upon a depending action at his instance against the bankrupts, in which he concluded for payment of a debt of £8880, 17s. 7d. The summons narrated that Stirling and Kenney were indebted to him, as trustee for Alexander Robertson, in that sum, being the balance due by them to Robertson on an account-current between him and their firm, “deducting therefrom any sums which the said defenders should be able to instruct were due by them to the said Alexander Robertson at the date of the sequestration of his estates.” Low, in his affidavit, deponed, in general terms, that Stirling and Kenney “were justly addebted and resting owing to the deponent, at the date of their sequestration, the said sum of £8880, 17s. 7d., with interest thereon.” No vouchers were produced along with the account founded on, but reference was made to the books of Stirling and Kenney, and to admissions in process.

In these circumstances, Lizars objected that the vote was bad, inter alia, in respect, 1. Of the uncertainty of the debt on which it depended (54 Geo. III. 123, § 24); and, 2. Of the grounds of debt not being produced, although the items of the account were of a description for which vouchers ought to be extant in the hands of the creditor (§ 23).

Burke answered—1. That the oath of verity, by which he deponed absolutely to the sum in question being due, was sufficient compliance with the statute. 2. That production of vouchers in the case of an account-current was not always necessary, more especially since the respondent appealed to the depending process and to the books of the bankrupts; ¹ and that in several cases the Court have sustained claims to vote, not merely where there was a defect of evidence, but where the claim was of a suspicious character. ²