Scottish Court of Session Decisions

Mr C. J. Munro, C.A., Edinburgh, as trustee in the sequestration of Andrew Ross Robertson, pronounced deliverances, dated 15th October 1885, upon twelve claims upon the estate. Some of these claims were admitted and some rejected.

Robertson appealed to the Court of Session against these deliverances, and on 30th October following the Lord Ordinary on the Bills ( Trayner) appointed service of the note of appeal upon the respondents.

The Bankruptcy (Scotland) Act 1856, sec. 127, provides—“If any creditor be dissatisfied with the decision of the trustee he may appeal by a short written note to the Lord Ordinary or to the Sheriff, but if no such note be lodged with and marked by the Bill Chamber or Sheriff-Clerk (as the case may be) before the expiration of fifteen days from the date of the publication in the Gazette” of the notice prescribed by the section, “the decision of the trustee shall be final and conclusive so far as regards that dividend.”. . .

Section 169 provides that “It shall … be competent to appeal against any deliverance of the trustee or commissioners to the Lord Ordinary or the Sheriff, provided the note of appeal shall be lodged and marked. .. within fourteen days from the date of the deliverance.”..

Roderick Scott, one of the creditors, objected to the competency of the appeal in respect it was not timeously presented. The trustee also resisted the appeal.

On 17th November following the Lord Ordinary dismissed the appeal in respect it was not presented within the time prescribed by the Bankruptcy (Scotland) Act 1856.

“ Opinion.—This is an appeal by a bankrupt against certain deliverances by the trustee on his sequestrated estates. Some of these deliverances are in favour of creditors, admitting their claims to be ranked, and others against creditors, rejecting their claims. An appeal of this kind presents a novelty in bankruptcy procedure. I am not prepared to say that it is incompetent in so far as it seeks to bring under review these deliverances, which, admitting claims, go to reduce the estate, in the reversion of which the bankrupt has an undoubted right and interest; but as regards the appeal against deliverances rejecting claims, I can see no legitimate right or interest which the bankrupt has to prosecute such an appeal. It is objected, however, on the part of the respondent, Mr Roderick Scott, that this appeal cannot be entertained at all, in respect it was not timeously presented.

The deliverances sought to be reviewed are all dated 15th October 1885, and the appeal was presented on 30th October thereafter, fifteen days, that is, after the date of the deliverances. By the 127th section of the Bankruptcy Act of 1856 it is provided that ‘if any creditor be dissatisfied with the decision of the trustee’ he may appeal against it within fifteen days from the date of the Gazette notice there provided for. If the present appeal fell within the allowance of that section of the statute it would not be open to the objection now stated against it. But I am of opinion that that section does not apply to the present appeal. It applies exclusively to creditors dissatisfied with the trustee's decision, and the appellant is not and does not claim to be a creditor on his own estates. Under that clause the bankrupt has no right of appeal.

Page: 266↓

By section 169 of the same Act it is made competent to appeal against ‘any deliverance of the trustee or commissioners,’ provided the appeal is lodged and marked by the Bill Chamber Clerk ‘within fourteen days from the date of the deliverance.’ I think, under this section, the bankrupt's right of appeal is provided for in any case where he can qualify a title or interest to appeal. He must do it, however, within the statutory period. In the present case the appeal was not presented or marked within fourteen days from the date of the deliverance appealed against, and it must therefore in my opinion be dismissed as incompetent.”

Robertson reclaimed, and argued—There was here no creditor objecting to the admission of the claims, the rejection of which was urged by the reclaimer. The 127th section applied, and must not be too strictly construed. It was very loosely framed, and the intention of the Legislature could not have been to exclude the bankrupt from its provisions, at least in a case where he had the material interest— Marshall v. Livingstone's Trustees, February 14, 1867, 5 Macph 377. Where a sequestration got out of its regular course the Court would interfere to set it in motion again— Lindsay v. Hendrie, June 15, 1880, 7 R. 911; Morris v. Connal, January 21, 1843, 5 D. 439. An appeal for instance had been allowed against a deliverance refusing a sequestration— Marr & Sons v. Lindsay, June 7, 1881, 8 R. 784, Bell's Comm. 5th ed. ii. 348.

The respondents argued—If this appeal was competent, then the Court must hold that the word “creditor” in the 127th section included the bankrupt. But if the Legislature had intended that the bankrupt should have a right of appeal under that section it would have expressly so provided. It was to be observed that section 127 repealed section 105 of the previous Bankruptcy Act of 1839 (2 and 3 Vict. cap. 41), and sec. 45 of the Act of 1814 (54 Geo. IIIi c. 157).