Scottish Court of Session Decisions

Lord President—This is an appeal against the ruling of the Sheriff in an examination under the 90th section of the Bankruptcy Act. In the course of this examination a witness, Mr Officer, was asked—“When did you see the bankrupt last?—Depones, I saw him about the beginning of June current. Interrogated, Where?—Depones, In London. Interrogated, Do you know where he is now?—Depones, I decline to answer that question on the ground of confidentiality, unless directed to do so by the Sheriff.” Then the Sheriff-Substitute “sustains the declinature, in respect the question has no reference to the bankrupt's affairs.” Now, I think that the Sheriff did quite right in sustaining the declinature, and that he assigned the true reason. The 90th section empowers the trustee to apply to the Sheriff to order an examination on oath of the bankrupt's wife and family, clerks, servants, factors, and others, who can give information relative to his estate, and issue warrant requiring such persons to appear, and if they refuse to appear the Sheriff may issue a warrant to apprehend the person so failing to appear; then the 91st section enacts that the “bankrupt and such other persons shall answer all lawful questions relating to the affairs of the bankrupt; and the Sheriff may order such persons to produce for inspection any books of account, papers, deeds, writings, or other documents in their custody relative to the bankrupt's affairs, and cause the same, or copies thereof, to be delivered to the trustee.” Now, a very stringent scrutiny is here permitted, and persons are compelled to answer questions in which they have no interest, but the statute confines the subject of examination to the estate and affairs of the bankrupt, and a person who cannot give any information on these subjects cannot be questioned in reference to other matters. Here the question was, where is the bankrupt?—that is not a question about the estate, it is a question about the whereabouts of the bankrupt himself, and however important it might be to the trustee to get an answer to that question, he could not competently ask it under the 90th section of the statute, and the Sheriff was quite right in disallowing the question.

But the examination goes on—“Have you any letters from the bankrupt relative to his affairs?— Depones, No. Interrogated, Have you received any letters from the bankrupt since he left Edinburgh?—The witness stated that he had received no letters from the bankrupt relative to his affairs, and declined to answer the question upon that ground, and also on the ground of confidentiality.” Here again the Sheriff-Substitute sustained the objection. Now, if the witness had said that he had letters from the bankrupt, but that they contained nothing relative to the estate or affairs of the bankrupt, I do not think that he could be allowed to be sole judge whether the letters really contained matters about the affairs of the bankrupt or not, but that the Sheriff-Substitute would have a right to look at the letters and satisfy himself. But it was not alleged here that the witness had letters containing any such information, so I think that the Sheriff was again right in sustaining the objection. I am therefore of opinion that the appeal should be dismissed.