Scottish Court of Session Decisions

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Cite as: [1884] SLR 21_276_1, [1884] ScotLR 21_276_1

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SCOTTISH_SLR_Court_of_Session

Page: 276↓

Court of Session Inner House Second Division.

Wednesday, January 9. 1884.

21 SLR 276_1

Anderson and Another, Petitioners.

Subject_1Process
Subject_2Bankruptcy
Subject_3Lost Process
Subject_4Competency — Court Of Session Act 1868 (31 And 32 Vict. C. 100), Sec. 15.
Facts:

A sequestration having been awarded by the Lord Ordinary on the Bills, the petition, the affidavit of the concurring creditor, the deliverance on the petition, and the certified copy thereof, were all destroyed by an accidental fire. Thereafter the first statutory meeting was held on the date appointed by the Lord Ordinary's deliverance, and a trustee elected. The bankrupt, concurring creditor, and trustee thereupon presented a petition to the Inner House praying the Court to authorise the minute of the meeting and other productions to be received into process in order that the trustee's election might be confirmed and the sequestration proceeded with. The Court ( dub. Lord Rutherfurd Clark) refused the petition as incompetent.

Question ( per Lord Young), Whether there was, in addition to a proving of the tenor, a remedy under sec. 15 of the Court of Session Act, by application to the Lord Ordinary.

Headnote:

The estates of William Murray Anderson, spirit salesman in Govan, were, on 19th December 1883, on the petition of himself and certain concurring creditors, sequestrated by the Lord Ordinary officiating on the Bills, under the Bankruptcy Act. By the deliverance awarding sequestration the Lord Ordinary appointed a meeting of the creditors for the election of a trustee and commissioners, and remitted the process to the Sheriff of Lanarkshire at Glasgow, to proceed in terms of
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the statute. An abbreviate of the petition and deliverance was regularly recorded in the Register of Inhibitions.

The appointed meeting was duly held, and a trustee and commissioners were elected. A few days before the meeting, the petition with the Lord Ordinary's deliverance thereon, the certified copy thereof, the affidavit of the concurring creditor, and the relative voucher, were destroyed by a fire which occurred in the office of the agent in the sequestration. A special report by the trustee explaining the loss of the writs was annexed to the minute of the meeting. As the writs were not produced, the clerk of the Sheriff Court at Glasgow, to which the sequestration had been remitted, declined to receive the other documents into process except on the authority of the Court of Session.

The petitioners in the original petition, namely, the bankrupt and the concurring creditors, along with the trustee, presented this petition to the Second Division of the Court, praying the Court “to grant warrant to and authorise the Sheriff-Clerk of Lanarkshire at Glasgow to receive the minute of the said first general meeting of creditors, and other productions in the process of sequestration, in order that the said trustee's election may be duly declared and confirmed; that an act and warrant may be extracted, and that the sequestration may be otherwise proceeded with in terms of statute notwithstanding the loss of the said petition and other writs.”

Section 15 of the Court of Session Act 1868 (31 and 32 Vict. cap. 100), provides:—“Where a summons, petition, or other original writ or pleading is lost or destroyed, a copy thereof, proved in the cause to the satisfaction of the Court before whom the cause is depending at the time, and authenticated in such manner as he or they shall require, may be substituted, and shall be held equivalent to the original for the purpose of the action.”

Authority— Foulis, July 18, 1872, ante, vol. ix. p. 631.

At advising—

Judgment:

Lord Young—I am clearly of opinion that this application is incompetent. The petition and affidavit and the deliverance of the Lord Ordinary awarding sequestration have all disappeared. There must be some way to replace these writs if it is desired to proceed with this sequestration. The obvious mode at common law would be a proving of the tenor, which is applicable to all sorts of documents. It may be that an inexpensive procedure is competent here under sec. 15 of the Court of Session Act. If such procedure is competent, the application must be made in the Bill Chamber; if it is not competent, I see no way but a proving of the tenor.

Lord Craighill—I. have come to the same conclusion, but unwillingly. Apart from authority I do not think we can do that which we are here asked to do. The case of Foulis was one merely of lost documents, not of a lost petition and deliverance and affidavits as here. I would gladly extend the decision in that case, but in the absence of any other authority, and in view of the fact that a remedy is open to the petitioner in an action of proving of the tenor, I find an insuperable difficulty in granting this application.

Lord Rutherfurd Clark—I say no more but that I am not sure how this case should be decided.

The Lord Justice-Clerk was absent.

The Court refused the petition as incompetent.

Counsel:

Counsel for Petitioners— Young. Agents— W. Adam & Winchester, S.S.C.
1884