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Cite as: [1884] ScotLR 21_321, [1884] SLR 21_321

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SCOTTISH_SLR_Court_of_Session

Page: 321↓

Court of Session Inner House First Division.

Saturday, January 26. 1884.

[ Lord Lee, Ordinary.

21 SLR 321

Clark

v.

Thom & Son.

Subject_1Bankruptcy
Subject_2Sequestration
Subject_3Petitioning Creditor
Subject_4Sufficiency of Affidavit — Inconsistency in Affidavit.
Facts:

In a petition for sequestration the creditor produced an affidavit in which he deponed that the debtors were resting-owing to him the sum of £75, 16s., conform to account annexed, which contained these entries:—“1883, June 5.—To one second-hand omnibus, £35. June 8.—To one second-hand brake, £40, 16s.” The creditor further in his affidavit reserved claim “for the hire of each machine referred, to in account, at the rate of £1 sterling per week from the dates when same were supplied.” Held that the affidavit was inconsistent in its terms, and petition refused.

Headnote:

This petition was presented to the Lord Ordinary on the Bills by Thomas Kinmonth Clark, coach—builder, Crieff, for the sequestration of the estates of William Thom & Son, hotel-keepers, Grand Hotel, Oban, under the Bankruptcy (Scotland) Act 1856. The petitioner averred that the debtors were notour bankrupt, and he produced the following oath and account:—“Appeared Thomas Kinmonth Clark, coachbuilder, Crieff, who being solemnly sworn and interrogated, depones—That William Thom & Son, hotel-keepers, Grand Hotel, Oban, are justly indebted and resting—owing to the deponent the sum of £75, 16s. sterling, conform to account annexed, and signed by the deponent and the said Justice of the Peace as relative hereto, no part of which is paid or compensated, nor does the deponent hold any security for the same, or any part thereof, nor anyone liable to him for said debt except the said William Thom & Son. The deponent reserves claim for the hire of each machine referred to in account, at the rate of £1 sterling per week from the dates when same were supplied.”

“Account, Messrs William Thom & Son, hotel—keepers, Grand Hotel, Oban, to T. K. Clark, coachbuilder, Crieff.

“1883. June 5. To one second-hand Omnibus,

£35

0

0

June 8. To one second-hand Brake,

40

16

0

£75

16

0

“ Crieff, 7th December 1883.—This is the account referred to in my affidavit of this date.”

The petition was opposed by Thom & Son.

Judgment:

The Lord Ordinary ( Lee) refused the petition.

“ Note.—In this case it is disputed by the bankrupt that the petitioner is a qualified creditor, and the question is whether his affidavit and claim sufficiently instruct that fact to support the petition. It is true that an open account duly sworn to has been held sufficient. But there is a peculiarity in the terms of the oath in this case, inasmuch as it ‘reserves claim for the hire of each machine referred to in account, at rate of £1 sterling per week, from the dates when same were supplied.” This shows that there is some ambiguity in the petitioner's claim. It is not the case of goods supplied upon open account in the ordinary course of trade. There is an implied admission that the articles may not have been furnished as by a seller to a purchaser, and on such a footing as to transfer the property. And as it is denied that this was so, and the petitioner's letters (the genuineness of which was not disputed) lend considerable support to the denial especially as regards the omnibus, I am of opinion that the affidavit and claim are not sufficient.

In arriving at this conclusion I assume that where the oath is sufficient the Court has no discretion as regards awarding sequestration, excepting in very special circumstances (see Campbell v. M'Farlane, 24 D. 1097, per Lord President). But it is undoubtedly within the functions of the Lord Ordinary on the Bills or the Sheriff to see that the petitioning creditor is qualified in terms of sec. 13 of the statute ( Simpson v. Myles, Nov. 8, 1881).”

The petitioner reclaimed, and argued—The reservation of a claim for hire did not spoil the affidavit. The contract disclosed was an ordinary one, being in its inception one of hire, which might be converted into one of sale if the hirer wished it— Cropper & Co. v. Donaldson, July 8, 1880. The account was a sufficient voucher— Laidlaw v. Wilson. January 27, 1844, 6 D. 530; Simpson v. Myles, November 8, 1881, 9 R. 104; Knowles v. Crooks & Balgarnie, February 1, 1865, 3 Macph. 457.

The terms of the petitioner's letters referred to in the Lord Ordinary's note were not before the Inner House.

At advising—

Lord President—I think it is very much to be regretted that the petitioning creditor here should have put his affidavit in this shape, but I think it is impossible to resist the conclusion at which the Lord Ordinary has arrived. The petitioner says that he reserves a claim of £1 per week for the hire of the goods said to have been sold on the 5th and 8th of June, and that hire at that rate is to run from this date, when according to the rest of the affidavit the sale was made. These two things are quite contradictory. If there was a sale on the 5th and 8th of June, and the goods were delivered on those dates, I think it is quite impossible that there can be any claim for hire. The two contracts cannot stand together. It is quite an ordinary arrangement to deliver an article upon a contract of hiring, with a stipulation that the party hiring the instrument or carriage, or whatever it may be that he has got, may convert the contract into one of sale if after possessing for a time he desires to acquire it in property. From the terms of this affidavit, however, it is plain there could be no contract of sale as at the date of delivery, for the goods are stated in that reservation to have been delivered upon a contract of hiring. There may have been an arrangement that the hirer was to convert the contract into a sale, but the terms of that arrangement are not disclosed. I think it is impossible to sustain this affidavit, and that therefore we should adhere.

Lord Deas and Lord Mure concurred.

Lord Shand—I am of the same opinion. There is no doubt that this affidavit would have been in

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regular form if it were not for the concluding sentence, which contains a reservation of a claim for the hire of the omnibus and brake contained in the account. Then the affidavit would simply have stated that goods were sold and delivered, and this would have been vouched by an ordinary account setting forth the dates of the sale by the builder to the buyer. But the petitioner goes on to reserve a claim for hire of the articles for a period subsequent to the date when according to the account they had been sold. The result is that it is not clear whether the contract was one of sale or of hire. It was explained that the original contract was one of hiring, but that it was converted into a sale in September. If that had been clearly set out in the affidavit I think the oath would have been quite good; if there had been a statement that the articles had been hired for a certain period, and that for that a claim for hire was reserved, and then that they were sold in September, I think that would have been quite good. But what is stated is that the sale was in June, and that the hiring was for the period after June, and therefore I think the affidavit is bad.

The Court adhered.

Counsel:

Counsel for Petitioner— Goudy. Agent— John Gill, S.S.C.

Counsel for Respondents— J. A. Reid. Agents — Adamson & Gulland, W. S.
1884