Scottish Court of Session Decisions

Lord President—This is a point of some importance in practice, and it is quite right that it should be decided. The only authority on the subject seems to be the case of Grant v. Wilson. What was there decided was merely that, when an appeal had been taken in vacation, and the note of appeal and process had been transmitted to the Clerk of the Bill Chamber before the meeting of the Court, but had never been before the Lord Ordinary at all, the jurisdiction in that appeal lay with the Inner-House. The difference between that case and the present consists in this, that here the appeal was not only taken in vacation, but was laid before the Lord Ordinary on the Bills, and several deliverances were made by him, the last of which was an interlocutor closing the record, and appointing parties to be ready to debate at the next calling. The question is, whether that interlocutor did not fix the appeal before the Lord Ordinary? But his Lordship, who pronounced that interlocutor, is now functus officii. Lord Benholme was only officiating in the usual way for a fortnight during vacation, he has now, during session, no authority as Lord Ordinary on the Bills, and he cannot certainly hear the cause. The Lord Ordinary on the Bills, during session, is a different judge, and has no jurisdiction under section 170 of the Act. Therefore the case must be here. If not here, it can be nowhere at all. I think therefore that the plain and reasonable interpretation of the statute is, that where an appeal is taken during vacation it goes before the Lord Ordinary on the Bills; but that, unless finally disposed of, it must come here upon the meeting of the Court.

The other Judges were of the same opinion.

The Court therefore having sustained their jurisdiction in the cause, Counsel were heard on the merits of the appeal.

The following were, inter alia, the pleas in law for the appellant:—“(1) Under the Bankrupt Act, the appellant was entitled to examine the various claims, and to rank those which he was satisfied were justly due. (2) The appellant being fully vested with the bankrupt estate, for the purposes of the statute, and being entitled to administer it, and having satisfied himself by due inquiry that the claims objected to were justly due, was not bound to plead the triennial prescription against them, but was entitled to rank them.

(3) The appellant having ranked the respondent's claim, which was also prescribed, on the same principle on which he ranked the others, and upon less satisfactory evidence, it will be necessary, in the event of the appellant's judgment being recalled, that the whole ranking be made of new.”

At advising—

Lord President—I am of opinion that the Sheriff took the proper course in his deliverance, and that the trustee was utterly wrong in the doctrine on which he says he proceeded in sustaining all their claims, namely, that he was entitled to use his own discretion in admitting them, if he was satisfied otherwise that they were just debts of the bankrupt, though prescribed according to law. I cannot give the smallest countenance to such a doctrine. But while I am of opinion that the Sheriff-Substitute was perfectly right in holding that the trustee ought not to have admitted them as he did, I do not think it necessary to say, as he does, that the only proper evidence to support them is the writ of the bankrupt. For it may be quite possible that the bankrupt's widow, for instance, as his executrix, may have admitted the debts so as to elide prescription. I wish it to be understood therefore that I only support the interlocutor in its terms, without endorsing the note. But the question arises, what is the meaning of the interlocutor itself when taken in connection with the note of appeal on which it was pronounced? Now, I think that by the note of appeal which Mr Watt Smith presented, under the 127th section of the Act, he brought up for consideration the claims of all the creditors, including his own. In doing so he acted quite properly. It is enough to show that his own claim stood ex facie in the same category, and he may be of opinion that he can otherwise support it. It was the fair and proper course to take, and I am quite satisfied that that was the real meaning of the note of appeal in his name, for he craves that the trustee be ordered to reject the claims of the said respective claimants until they are sufficiently vouched in terms of the statute; viewing apparently the trustee's deliverance as one decision, not as separate decisions on the different claims. It therefore appears to me that under this note of appeal, and the Sheriff's interlocutor upon it, it will be quite open to the trustee to reconsider the claims of the respondent here, as well as those of the other creditors.

Lord Deas—I am not disposed to give any opinion as to how far it was or was not obligatory on the trustee to receive evidence of these claims to elide the plea of prescription, as that question is not before us; nor am I satisfied as to what the answer should be if it were. The trustee is no doubt right to collect all evidence in support of these claims. But whether, when he is satisfied as to the justice of any claim, he is bound to make further investigation, because it is ex facie prescribed or otherwise, is quite another matter. If that question arose, I should like to consider whether he could say to any creditor requiring such investigation, that he would make it, but at that creditor's expense. I only say that I doubt whether he is bound at the cost of the trust-estate to make such investigation where he does not think proper to do so. It would be very inexpedient and very hard upon the creditors generally, who are satisfied with the justice of the trustee's decision, and desiring to be ranked accordingly at once, if any one creditor could stop the proceedings,

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