Scottish Court of Session Decisions

In October, 1837, the estates of David Kirkland, grocer and spirit dealer in Cumnock, were sequestrated under the bankrupt act, pursuant to a petition by Kirkland, with concurrence of Hugh Wood, residing at Mansfield village, his father-in-law. In the petition it was stated that Wood was creditor of Kirkland on a bill for £100, and also for a loan of £60; and affidavit was made to that effect in terms of § 18 of the bankrupt act. But no vouchers of the alleged debts were produced. Neither was any voucher produced by Wood, at the election of an interim-factor, or of the trustee. There was a competition for the trusteeship between James Crawford, banker in Cumnock, and Matthew M'Kerrow, merchant there. Personal objections were stated to each candidate, besides numerous objections to their respective voters. In particular, the whole votes in favour of Crawford were objected to. Among these was the vote of Hugh Wood, who now produced the bill for £100 in the process of competition, but did not exhibit any voucher for the alleged loan of £60, for which he stated that no voucher had ever been granted. It was accordingly objected to Wood's vote, that, though the statute § 23 expressly declared that no creditor should be entitled to vote who had not, “either then or formerly, exhibited not only an oath of verity on his debt, but also the grounds or vouchers thereof,” yet Wood had produced no voucher. The bill for £100 ought to have been produced, at latest at the meeting for election; and, so far as regarded the alleged loan of £60, it was even yet wholly uninstructed, and could not be counted in the votes. No writ was produced in support of it, and it was incompetent either to refer it to the oath of the bankrupt, or to examine him as a witness regarding it, in respect of the near relationship of the parties. It was true that the petition for sequestration set forth both the debt under the bill, and the alleged loan for £60, but that did not do away with the statutory provision above quoted; and although none of the other creditors challenged the statement in the petition, as they all desired the sequestration to proceed, that did not debar them from challenging either Wood's right to vote, or his right to draw a dividend, in respect of these alleged debts, unless he complied with the requisites of the bankrupt act in founding on them. Crawford answered, as to the debt of Wood, that the whole amount of it was specially set forth in the petition of Kirkland for sequestration. No vouchers were then produced, because the bankrupt himself petitioned for sequestration, and it was not requisite, in such a case, to produce the vouchers with the petition. But Kirkland must have either signed the petition, or an express mandate sanctioning it, so that the petition was equivalent to the writ of Kirkland acknowledging the whole debt, which was therein set forth. And separately, in regard to the loan of £60, as no voucher was ever granted for it, none could be produced at the election meeting. It was, however, a just debt, supported, in the mean-time, by the claimant's affidavit, and could as well be made the foundation of a vote, as an open account, which was claimed and voted on, in daily practice. As the petition for sequestration, narrating the debt, was the foundation of the whole sequestration itself, and the deliverance thereon was of course produced at the very first meeting under the sequestration, Wood had not only adduced a sufficient voucher of his whole debt under the hand of the bankrupt, but the other creditors who took benefit by the sequestration were barred from challenging the debt of the concurring creditor, as set forth in the petition, They could not strike at that, without striking at the foundation of the sequestration itself; and Wood, if he were sufficiently clothed with the character of creditor, for carrying out the petition for sequestration, must be so also to the minor effect of voting for a trustee under that sequestration.

The Lord Ordinary “sustained the objections for Mathew M'Kerrow to the vote of Hugh Wood, in respect that no voucher was produced of the grounds of debt; and further, that in regard to £60, being part thereof, it was alleged to be proveable by the oath of the bankrupt, his son-in-law.” His Lordship also sustained objections to the whole other votes for Crawford, and, in respect thereof, found it unnecessary to decide on the personal objection taken against him. As to the personal objection against M'Kerrow his Lordship granted a diligence before answer. Crawford reclaimed, but insisted only against that part of the interlocutor which sustained the objection to Wood's vote.