Scottish Court of Session Decisions

This was an appeal in the sequestration of Moritz Unger, pearl and diamond merchant in Edinburgh, and the question was as to the competency of an order for proof granted to certain creditors, pending the examination of the bankrupt.

The bankrupt was first examined on 12th March last, when he made certain statements as to the loss of a pocket book containing upwards of £2500 worth of money and jewellery, which he said had dropped from his pocket into the sea when travelling between Hamburgh and Leith in the month of February preceding. The examination having been adjourned to the 18th March, was, on that date, again adjourned till the 2d April, when the bankrupt was examined at great length by counsel on behalf of certain creditors. He repeated his statement as to the loss of the pocket-book; and the Sheriff thereupon again adjourned the examination till the 1st July that inquiries might be made. Upon 1st July a further examination took place, at the close of which the counsel for the compearing creditors moved for a further adjournment, and, having offered to guarantee the estate against any further expense that might be thereby incurred, obtained from the Sheriff-Substitute ( Hallard) the following deliverance:—“The Sheriff-Substitute, in respect of the guarantee above set forth, adjourns the further examination of the bankrupt till the 2d day of October next, at eleven o'clock forenoon, further, grants commission to Robert Stuart., Esq., of Lincoln's Inn, London, barrister-at-law, and to the British Consul at Hamburgh, to examine witnesses and receive documents with reference to the various matters contained in the bankrupt's previous examination; said commission to be reported against the diet to which this meeting is now adjourned.”

The bankrupt appealed against this deliverance, maintaining that the adjournment of the examination was incompetent, and that there was no authority in the Bankrupt Act for granting such a commission as proposed.

The Court to-day sustained the appeal, holding that the Sheriff had no power to adjourn the examination for so long a period, and that the proposed commission to examine witnesses in London and Hamburgh was an unheard of and incompetent proceeding. The 90th section of the statute no doubt gave certain powers to the trustee in the way of obtaining information, but that section did not contemplate that its machinery should be set in motion by individual creditors, and certainly did not contemplate a roving commission to take the evidence of parties not named, and not in any way described or defined.

Appeal sustained, with costs against the compearing creditors.