Scottish Court of Session Decisions

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Cite as: [1871] ScotLR 8_502_2, [1871] SLR 8_502_2

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SCOTTISH_SLR_Court_of_Session

Page: 502↓

Court of Session Inner House First Division.

Thursday, May 18. 1871.

8 SLR 502_2

M'Alister

v.

Brown and Others.

Subject_1Proof
Subject_2Payment
Subject_3Writ or Oath
Subject_4Diligence — Receipts.
Facts:

Where a party sought to instruct payment by writ or oath of the payees, the Court refused to grant a diligence for the recovery of receipts said to be in the hands of the payees, as the mere fact of such receipts being in their hands, unless supplemented by parole evidence, would not prove payment, but the reverse.

Headnote:

This was an appeal, under the 169th section of the Bankrupt Act, against a resolution of the creditors in the sequestration of James M'Alister, glass merchant in Glasgow. The appeal was taken by M'Alister himself, not qua bankrupt, but as trustee of certain parties deceased, alleged to be creditors on his estate. The resolution appealed against was a resolution that the estate shall not be wound up under deed of arrangement; and the object of the appeal was to have it declared that a counter resolution, that the estate ought to be wound up under a deed of arrangement, was carried by a due majority,—that is, by a majority in
Page: 503↓
number and four-fifths in value of the creditors present. Mr M'Alister objected to the whole votes of his opponents, on the ground that the whole of the creditors voting had discharged the bankrupt under a private trust in 1862, and therefore could not act as creditors in the present sequestration. The appellant's averments on this head were shortly as follows:—That in 1862 he granted a trust-deed for behoof of his creditors; that an arrangement was then made by which he should be discharged on payment of a composition of £700; that the composition had been paid, and a deed of discharge prepared and duly delivered to him; that the discharge had shortly after been fraudulently obtained from him, and the signatures scored out. Various objections in detail were stated by the appellant to the votes of his opponents. The latter denied the statements of the appellant, and objected to the debts in virtue of which he claimed to vote.

The Lord Ordinary ( Gifford) dismissed the appeal, with expenses.

M'Alister reclaimed.

M'Kechnie, for him, argued that if he could show that the whole votes of the respondents were null in consequence of their having granted a discharge in 1862, the appellant would be entitled to succeed if he had any good votes at all. For this purpose he asked a proof by writ or oath, and particularly a diligence for the recovery of documents to instruct payment by the bankrupt of the £700 mentioned above.

J. M. Duncan, for the respondents, was not called on.

At advising—

Judgment:

Lord President—I am quite satisfied with the Lord Ordinary's interlocutor. The appellant seeks to open up the question by a demand for a recovery of documents. His object is to show that he was discharged in 1862 by the creditors who voted against him. Now it is in evidence that a deed of discharge was prepared at that time. If it had been delivered it would have had the effect of discharging the bankrupt. But the deed is cancelled, and in the hands of the granters. What the appellant proposes to do is to show that this deed was to be granted on payment of £700. He proposes to prove that the £700 has been paid by him, and, therefore, that the deed of discharge ought to have been delivered. The payment he proposes to instruct by writ or oath. But what kind of writ? Not by receipts in his own hands, which constitute the proper evidence of payment, but by writings in the hands of other parties, which he seeks to recover. But unless this recovery is itself to operate as delivery, it would be no verification of his allegation, but the reverse. The fact that the receipts, if there are such, are still in the hands of the creditors, would rather show that the payment had not been made.

Lords Deas and Ardmillan—concurred.

Lord Kinloch—This is simply an attempt to falsify affidavits of creditors, ostensibly by means of a diligence to recover writs. But no diligence would be of any avail without parole evidence. The recovery of the writs would prove nothing in the appellant's favour.

The Court adhered, with additional expenses.

Solicitors: Agent for Appellant— John A. Gillespie, S.S.C.

Agents for Respondents— Goldie & Dove, W.S.

1871