Scottish Court of Session Decisions

In July 1881 Andrew Ross Robertson filed a petition in the Court of Bankruptcy in London for liquidation under the English Bankruptcy Act 1869. In that petition he was designed as of 12 Calthorpe Street, Gray's Inn Road, in the county of Middlesex, agent. In his affidavit the petitioner swore that he had resided in England since 1876, and had had no residence or domicile in Scotland or elsewhere other than in England since that date, and had no intention of residing in Scotland. He obtained his discharge, and after he had obtained it an application was filed in the same Court on behalf of “D. H. & T. Wilson, law-agents and conveyancers, Edinburgh,” for an order to annul and vacate the said discharge and other proceedings in the liquidation, on the ground that the English Court had no jurisdiction to entertain the proceedings, as the petitioner was then, and had been since 1876, domiciled in Scotland, and that no notice of the proceedings had been given to them as creditors. This application was, after sundry proceedings, dismissed with costs (which were afterwards, on 4th August 1882, taxed at £75, 3s. 5d.), to be paid by the applicants to Robertson, the petitioner.

Page: 617↓

The order finding these costs to be due bore to be against “David Hay Wilson, S.S.C., and Thomas Wilson, law-agents, of 4 Maitland Street, Edinburgh.” Robertson had this order registered in the Bill Chamber in Edinburgh on 12th July 1883, under the Judgments Extension Act 1868, and Act of Sederunt of 21st June 1883, and then charged David hay Wilson personally on the registered order and certificate.

David Hay Wilson thereupon presented in the Bill Chamber a note of suspension of the charge. In his condescendence he averred that he and his brother Thomas Wilson had at one time carried on business as law-agents in Edinburgh under the firm of “D. H. & T. Wilson;” that on 3d June 1879 his estates were sequestrated, and in consequence the firm dissolved as at 31st December 1878, the dissolution being duly intimated in the Gazette; that since that time he had ceased to be a partner of the firm, the business of which had been carried on under the same firm by his brother Thomas Wilson till Whitsunday 1882; that in 1879, when the business was being carried on by Thomas Wilson as sole partner, the respondent had incurred debt to it for business accounts; that Thomas Wilson as sole partner, had in 1881 obtained decree against him for the amount thereof, and charged thereon; that he (the suspender) was no party to the application made by the firm of D. H. & T. Wilson to the Bankruptcy Court in England, which was at the instance of Thomas Wilson only as then sole partner of that firm; that he had no interest therein beyond having been called as a witness; that his name did not appear at any stage of the proceedings, and that if it did appear in the order and certificate founded on, it was without his knowledge, and without his having had any opportunity of defending himself. He also averred that the respondent was well aware of his sequestration and retirement from the firm.

The respondent averred—“Under the said [English] Bankruptcy Act, particularly sections 72 and 73 thereof, and the Judgments Extension Act 1868, and the Act of Sederunt of 21st June 1883, the Courts of Scotland have no jurisdiction, and are not entitled to entertain and challenge the said order and certificate, but are bound to enforce the same. The terms of the said order and certificate were, under the general rules, made in pursuance of the said Bankruptcy Act, adjusted on behalf of the complainer and Thomas Wilson, by their solicitors, Messrs Kepping & Co., before the registrar in attendance on the Chief Judge in bankruptcy. The said order and certificate are in the terms so adjusted.” He farther averred that the registered order and certificate were directed against the complainer David Hay Wilson, and also against his brother Thomas Wilson, and formed a legal and valid warrant of charge and other diligence against both and each of them.

The Act of Sederunt (21st June 1883), to regulate procedure for the enforcement in Scotland of orders under the Companies Act 1862 and the Bankruptcy Act 1869, provides (by sec. 1) that on production to the Clerk of the Bills of an office copy of any order made by a Court having jurisdiction in bankruptcy in England in terms of the English Bankruptcy Act 1869, the same shall be registered in extenso in a register to be kept for that purpose in the office of the Bill Chamber Clerk, on payment of a fee, and that the register shall be open to all concerned; sec. (2) provides that after such registration the Clerk shall append to such office copy a certificate subscribed by him of the registration thereof, “and the same being so registered and certified, shall be a sufficient warrant to officers of Court to charge for payment of the sums recoverable under such order, and of the expenses of registering the same, and to use any further diligence that may be competent, in the same manner as if such order had been originally pronounced in the Court of Session on the date of such registration as aforesaid.”

The note having been passed, Lord M'Laren, to whom the process had been marked, on 4th March 1884 allowed a proof.

On 17th April following, proof having been led, the Lord Ordinary pronounced this interlocutor—“Finds that the complainer was not a party to the application in which the order of Mr Registrar Pepys libelled was made, and that the complainer was not liable for costs in such application: Finds that the said order was registered for execution in the office of the Clerk of the Bills without an opportunity being given to the complainer to apply to the Court of Bankruptcy in England to amend said order: Therefore suspends the charge complained of, and whole grounds and warrants thereof, and decerns.”

“ Note.—The complainer has been charged on a registered order of the English Court of Bankruptcy to make payment of £75, 3s. 5d. to the respondent, being costs incurred in certain proceedings in that Court. The order of the Court of Bankruptcy is dated 4th August 1882, but it was not registered in the Bill Chamber for execution until eleven months thereafter, viz., on 12th July 1883; and as soon as the complainer was charged thereon he instituted this process of suspension.

Now, the costs in question were occasioned by the unsuccessful application of Messrs D. H. & T. Wilson, solicitors, Edinburgh, to set aside the proceedings in Robertson's liquidation, and the ground of suspension is that the complainer David Hay Wilson was not a party to the application in the Court of Bankruptcy, and was not a partner of the firm of D. H. & T. Wilson, the proper applicants.

I thought that the facts should be inquired into, and accordingly allowed a proof. At the proof the suspender gave evidence to the effect that he ceased to be responsible as a partner of D. H. & T. Wilson on 6th June 1879, on which day notice of the dissolution of partnership was advertised in the Gazette. He also produced the original application or notice of motion for setting aside the proceeding in liquidation, which application was made in the name of D. H. & T. Wilson, and was accompanied by an affidavit of Mr Thomas Wilson, in which he states that he is the sole partner of the applicants' firm. The complainer also depones that he never instructed the proceedings in question, and so far as copies of the proceedings are in process they support his statement, because the complainers, name does not appear in any of the papers, except as subscriber of an affidavit to certain facts of which he was an eyewitness.

Page: 618↓

No evidence was offered to prove that the suspender instructed or maintained the proceedings instituted by D. H. & T. Wilson, or that he was in fact a partner of or person using that firm during the period of the dependence of the proceedings in bankruptcy, and I therefore hold that the facts set forth in the note of suspension, so far as material, are proved.

On the other hand, the order of the Court of Bankruptcy upon which the charge was given describes the application as the application of David Hay Wilson, S.S.C., and Thomas Wilson, law agents, of No. 4 Maitland Street, Edinburgh, and directs that the said application by the applicants be dismissed with costs, to be paid to the debtor, the said Andrew Ross Robertson. It was contended by the respondent that it was thus ascertained by a decree of the proper Court that Mr David Hay Wilson was one of the applicants. It appears to me that this contention involves too strict a view of the obligatory character of the decree. The decree is no doubt a valid decree as between the parties concerned. But the application did not describe who were the partners of the firm of D. H. & T. Wilson, and when it came to be necessary to insert the proper names in the decree, the Court of Bankruptcy was necessarily dependent on the information which might be furnished to it by the counsel or solicitors for the parties. But the parties or their solicitors could not by giving the name of a person unconnected with the cause render that person responsible for costs. And it must be open to the complainer in the circumstances to have the execution of the order suspended as regards its effect upon himself.

The only question is, whether I ought to suspend the charge simpliciter, or merely to sist process in order that an application may be made to the Court of Bankruptcy to have the order amended? Now, of the jurisdiction of this Court to give redress by suspension I entertain no doubt. Although, where there is any convenience in the other course, this Court will no doubt grant a sist, and leave the party to apply for relief to the Court by which the decree or order was granted, yet in the present case I see no reasons of convenience for sending the complainer to the Court of Bankruptcy. In the first place, it is more than eighteen months since the order was made, and I have an impression that the time has expired within which it would be possible to have the order amended. Secondly, execution has not been issued against the suspender in England, and it is not clear that he is in a position to seek relief there in a form analogous to our process of suspension. Thirdly, evidence has been taken here, and in a case which appears to me so clear I should be unwilling to put the parties to the expense of a second trial. Lastly, the Act of Sederunt under which this order is registered declares that the registered order shall be a warrant for diligence in the same manner as if such order had been a decree originally pronounced in the Court of Session on the date of such registration as aforesaid.

It therefore appears that diligence on order of the Court of Bankruptcy is assimilated in legal effect to a diligence on registered bonds or bills, the order being enforcible as an order or decree of the Court of Session.

Now, if the error which is here in question had crept into a decree of the Court of Session, I apprehend that suspension would be the proper mode of giving redress, and so on this ground also I think the prayer of the note ought to be granted forthwith.”

Robertson reclaimed, and argued—No proof ought to have been allowed, and it could not competently be looked at. It was taken by a Judge having no jurisdiction. Whoever might have made the application, the order of the Court of Bankruptcy clearly was against the complainer individually, and as such it was registered here, and the Court could not competently look behind that. An English decree was here merely for execution, and could not be inquired into in any way. Any application to stay diligence under it on the ground of error or otherwise must be made, and could only be made, in the Court in which the decree was pronounced. i.e., in England—32 and 33 Vict. c. 71, (English Bankruptcy Act), sec. 73; Judgments Extension Act 1868 (31 and 32 Vict c. 54); A.S., 21st January 1883.

The suspender replied—He had shown on the proof that he was not a partner of the firm, and not a party to the English application. The registration and execution of the English decree in the Court here made it a Scottish process, and gave the Court jurisdiction to order inquiry into the facts on an allegation of error in the order or injustice in its execution, and this the Court could do without in any way reviewing the merits of the English judgment. Besides, the respondent had submitted to a proof and taken the Lord Ordinary's judgment thereon, and could not now be heard on a plea of no jurisdiction.

At advising—