Scottish Court of Session Decisions

This was an appeal at the instance of James Barr, a creditor on the sequestrated estate of Messrs Martin & Dunlop, civil engineers, Glasgow, against Robert Tosh, the trustee in the sequestration. It appeared that during the examination (but whether before or after the trustee had concluded his examination was not clearly stated) the following question was put to him by Mr Gavin Hamilton as procurator for Mr Barr—“Did you do business for Messrs Cook & Company, Kilbirnie, and did you get payment of any money for that work within the last three years?” The question was objected to, on the ground that the examination must be conducted by the trustee as the statutory representative of the creditors, and that the bankrupt, being bound to disclose the estate to the trustee, such questions were unnecessary and incompetent, and the objection was sustained by the Sheriff-Substitute ( Campion).

Barr appealed, and argued—The bankrupt was bound under the 91st section of the Bankruptcy Statute 1856 to “answer all lawful questions relating to” his affairs, and the proper object of his examination being to ascertain what his estate consisted of, where it was, and what he had done with it, the question objected to was a legitimate one. It was the universal custom for creditors (themselves or by mandatory) to put questions to the bankrupt after the trustee had concluded his examination.

Authorities— Delvoitte Co. v. Baillie's Trustee, 16th Nov. 1877, 5 Rettie 143; Barstow v. Hutcheson, 21st Feb. 1849, 11 D. 687; Smyth v. M'Clelland, 23d Dec. 1843, 6 D. 331.

It was answered for the trustee that the question objected to was the first of a written list proposed on behalf of the appellant, and disallowed after inspection by the Sheriff-Substitute, and that the Sheriff's sanction was necessary for any question to be put to the bankrupt by a creditor under section 93 of the 1856 Act.

At advising—