Scottish Court of Session Decisions

James Drummond, C.A., had a majority in number and value of the creditors in competing for the trusteeship on the sequestrated estate of Manson & Auld, wrights, Crossmyloof. He applied to the Sheriff for a “diligence against havers to recover from the bankrupts, their clerk R… M… . or other third parties in possession of the following documents, which will instantly verify the following claims in said competition” (for trusteeship), “and which claims are admitted by the bankrupts in their state of affairs made up in terms of the statute. Said documents are out of the possession of and entirely beyond the respective claimants' control, and delivery thereof cannot be obtained without warrant of Court.” A detailed specification followed specifying the names of the claimants and the documents sought to be recovered. The claimants referred to were three in number, tradesmen who had done work for the bankrupts. On 18th October 1879 the Sheriff-Substitute (Cowan) granted the diligence as craved.

Against this interlocutor Robert Reid, a competitor for the trusteeship, appealed. He objected to the validity of the votes tendered in support of Drummond, on the ground that the accounts on which the various claims rested were totally unvouched, in respect that there were not produced the contracts, estimates, measurements, and details of the work charged for. The affidavit in each case declared that the bankrupts were “and still are justly indebted and resting-owing to the deponent the sum of £ sterling, conform to account or state of debt annexed and subscribed by the deponent as relative hereto.”

The appellant argued—The affidavits were bad, because the work charged for was insufficiently vouched in the annexed state of debt. This case did not fall within Tennent v. Crawford, for there the document (apart from the matter of stamping) showed no ex facie objection; but here the affidavits were ex facie defective. The estimates and offers, &c., should have been produced; they must either be in the possession or control of the claimants, or if not, they should under sec. 50 of Bankruptcy Act have shown cause why not. [Lord Shand—That section refers to payment of dividend—not to competing for trusteeship.] If this diligence was granted, the claimants might simply allege debt £ conform to note annexed, and the note might only state, “to work done £”, and any after inquiry into the details would be very much against the “least possible delay” prescribed by sec. 71.

Authorities— Tennent v. Crawford, Jan. 12, 1878, 5 R. 433; Woodside v. Esplin, July 15, 1847, 9 D. 1486; Aitken v. Stock, Feb. 14, 1846, 8 D. 509; Wiseman v. Skene, Mar. 5, 1870, 8 Macph. 661.