Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Oliver v. Wallace [1868] ScotLR 6_252 (21 January 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0252.html
Cite as: [1868] SLR 6_252, [1868] ScotLR 6_252
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 252↓
Court of Session Inner House First Division.
v.
Facts:
When a trustee on a bankrupt estate thinks that evidence is required in support of a claim, he ought to give the claimant an opportunity of leading that evidence.
Where a claim has been rejected by a trustee as unsupported by evidence, and the claimant appeals, it is matter of discretion for the Court either to take the evidence or to remit to the trustee to take it.
The estates of James Orr were sequestrated on 6th September 1867, and the respondent was appointed trustee. Certain claims on Orr's estate, lodged by Oliver, were rejected by the trustee, he alleging that many of the items were manifestly unfounded, and that no evidence was offered in support of them.
Oliver appealed, and craved the Court “to recal and alter the decision complained of; and to ordain the trustee to rank the appellant in terms of his claim; and to make payment of the dividend corresponding to the debt for which the appellant claimed in his oath; to be ranked with bank interest on the dividend from the time the same shall be deposited by the trustee; and to find the appellant entitled to expenses.”
The Lord Ordinary ( Manor) pronounced this interlocutor:—“Remits back to the trustee to require and receive evidence of the several items of the appellant's claim, and to dispose thereof as he shall see fit: Finds the appellant liable in expenses, ”&c.
“ Note—It appears to the Lord Ordinary quite incompetent for the appellant to come to the Court and ask for a proof, which he might have had, and ought to have led before the trustee.”
The appellant reclaimed.
Scott and Reid for reclaimer.
Burnet for respondent.
At advising—
I understand all your Lordships to be of opinion that it is not incompetent for the appellant to ask for a proof here, or for the Court to allow it if they see cause; and it is matter of discretion in the circumstances, whether the course adopted by the Lord Ordinary should be followed, or a proof allowed in this Court.
I should desire, however, to add that I hope it will not be understood that if we take the course of allowing the proof to be taken here, that imports in any way an expression of opinion that a trustee is justified in not taking evidence, when necessary, in support of a claim, or that what we do here can have any effect on the decision in Adam and Kirk. As far as I am concerned, I adhere to what I said in that case. When a trustee considers that evidence is required in support of a claim, he should give the claimant an opportunity of leading that evidence, for generally that can be done more easily and more cheaply before the trustee than here. But in this case I think it would be most expedient to take the proof here.
The other Judges concurred.
Agent for Reclaimer— John Walls, S.S.C.
Agent for Respondent— John Thomson, S.S.C.