Scottish Court of Session Decisions

This was an appeal presented by James Edmond, advocate in Aberdeen, trustee on the sequestrated estates of Grant & Donald, druggists in Aberdeen, against two interlocutors of the Sheriff-Substitute of Aberdeenshire.

Alexander Robertson residing at Kepplestone, near Aberdeen, claimed to be ranked as a creditor on the bankrupt's estate in respect of a bill for £368, drawn by him upon and accepted by them. The trustee rejected the claim, and Robertson appealed to the Sheriff.

The Sheriff-Substitute appointed the parties to lodge minutes in terms of the Act. The fifth statement made by the trustee was in these terms:—

“5. Grant & Donald never received any money or value in consideration of either of the said bills or the said note. Whatever may have been the transaction, the firm had no concern or interest in it. It was one of Grant's alone, and known to the claimant to be his, and dealt with by him as such.”

This statement was denied by Robertson.

On 17th November 1865 the Sheriff-Substitute pronounced the following interlocutor:—

“Having heard parties' procurators, allows the respondent a proof of the fifth article of his revised minute, and the appellant a cross proof; grants warrants for letters of diligence at both parties'

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instance against witnesses and havers; and assigns the 9th day of December next, at ten o'clock forenoon, for proceeding with the proof within the Court-house of Aberdeen. (Signed) W. Watson.”

The first witness adduced for the trustee was himself. He was examined on 9th December 1865. The following minute of his examination contains the first interlocutor against which the present appeal was presented:—

“Compeared James Edmond, advocate, sworn — I am trustee on the sequestrated estate of Grant & Donald. The firm's books are in my possession as trustee. I was told I had got the whole of the books. Being asked to exhibit the said books, Objected to on the ground that the books are in the respondent's possession, and ought to have been produced, or excerpts therefrom made and produced, before the record was closed. Answered, that the books do not belong to the respondent, but to the whole body of creditors, and were open to the inspection of every creditor and claimant. The Sheriff-Substitute, in respect the books offered to be produced were in the respondent's possession, and ought to have been produced before the record was closed, or excerpts therefrom produced, sustains the objection, but allows the question to be answered on a paper apart to be sealed up.

(Signed) James Edmond.”

The only witnesses examined by Robertson were himself and John Smith Grant, one of the bankrupts.

The trustee thereafter moved to be allowed to adduce evidence in replication to the evidence of Grant. In obedience to an order by the Sheriff, he stated in a minute that the following were the particulars on which he wished to be allowed a proof in replication:—

“1. The statement that part of the money said to have been got from the appellant went to pay accounts due by the firm for drugs. 2. The statement that part of it was lent to A. & W. Gray. 3. The statements in reference to payments to Higgin & Thom, Joseph Cohen, Grossmith, and others, which it was stated will appear in the cashbook paid at that date. (4) The indefinite statement as to the part of the money being deposited in the bank, with reference to the bank-book. 5. The indefinite statement regarding payments to M'Nellan & Co. 6. The statement that the firm was concerned in the speculation in lard. 7. The statement that the witness did not recognise the claim of Williamson's trustees as valid. 8. The statement that many of the transactions of Grant & Donald were not entered in their cash-book.”

The Sheriff-Substitute, on 9th March 1866, pronounced the following interlocutor, which was the second one appealed against:—

“Having resumed consideration of this cause, with the minute for the respondent, No. 18 of process, refuses the respondent's motion to be allowed a proof in replication of the evidence of the witness John Smith Grant: Circumduces the term for proving; and appoints parties prors. to be heard on the proof and whole process.

(Signed) John Comrie Thomson.”

“ Note.—The Sheriff-Substitute allowed the respondent a proof of the fifth article of his minute, and the appellant a cross proof. The respondent led and closed his proof. It appears to the Sheriff-Substitute that he is now seeking merely to supplement that proof by additional evidence, which, if of importance, as he now maintains it to be, he ought to have led before he declared his proof in chief closed. No circumstance embraced within the article originally remitted to proof has been now stated by the respondent, which, in the Sheriff-Substitute's opinion, he might not have met in his first probation. (Initd.) “J. C. T.”

The Lord Ordinary officiating on the Bills (Benholme), on 11th April 1866, pronounced the following interlocutor:—

“The Lord Ordinary having considered the note of appeal, together with the process and productions and heard parties' procurators, recalls the interlocutor appealed against, and remits to the Sheriff to allow the books of the bankrupts to be produced and form part of the process: also to open up the packet No. 28 of process: and, further, to allow the appellant to lead evidence in replication of the evidence of the bankrupt Grant, in terms of minute No. 18 of process, and thereafter to proceed to dispose of the original appeal by Robertson against the deliverance of the trustee, and also to dispose of the expenses of this appeal.

(Signed) H. J. Robertson.”

Robertson having reclaimed.