Scottish Court of Session Decisions

The Lord Ordinary ( Mure) repelled this objection to title, and deferred consideration of the petition for four weeks, in order that the necessary steps might be taken by the objector for having a new trustee elected, and the sequestration proceeded with.

His Lordship added the following note:—

“Had this case depended solely upon the terms of the report by the trustee, the Lord Ordinary would not have been disposed to delay granting the discharge, because, as at present advised, he does not think that report shows such culpable and undue conduct on the part of the bankrupt as would warrant the refusal of the petition. But as it appears that there are funds payable to the bankrupt under contracts in which he has an interest, entered into by him since his sequestration, which may be made available to his creditors under section 103 of the Bankrupt Act, the Lord Ordinary does not consider that it would be right to grant a discharge until the creditors shall have an opportunity of taking steps, if so advised, to make those funds available. And, as regards the title of the objector to oppose the discharge, it appears to the Lord Ordinary that, as the objector was admittedly entered as a creditor to the extent of £75 in the state of affairs given up by the bankrupt, and has now produced an oath of verity, he has shown a sufficient title and interest to appear and state the objections he has done to the present application, although that oath may require to be amended before any dividend is paid on it.”

The petitioner reclaimed.

D.-F. Moncreiff and Campbell Smith for him.

Duncan in answer.

Their Lordships held that, while for the purpose of voting, ranking, and otherwise taking part in the sequestration, an oath on vouchers were necessary in terms of the 49th section, yet that did not apply to such a matter as opposing an application by the bankrupt to have the sequestration brought to an end. Under the former Bankrupt Act this distinction was well recoguised; and the only difference, quoad hoc, between the former bankrupt statute and the present was, that under the present statute the bankrupt could, after a certain time, petition for discharge without any concurrence on the part of his creditors, whereas under the former Act such concurrence was always necessary. That difference was, if anything, in favour of the objector, and therefore there was no reason for applying a different rule in construing the present statute from that which was adopted in construing the former one.