Scottish Court of Session Decisions

The estates of the late David Hay Wilson were sequestrated in 1879, and in 1898 James Walker, C.A., was confirmed trustee thereon, there having been three other trustees in the interval. Mr Wilson now presented a petition to the Court in which he set forth that he had realised the bankrupt's estate

Page: 506↓

and was in a position to distribute it among the creditors. “But the difficulty has occurred, that the original process, including the claims of creditors, and whole other documents in the sequestration, cannot now be found, with the exception of the sederunt book, two claims as hereinafter specified, and sundry other documents unimportant in so far as they do not relate to the ranking and claims of creditors. Every search has been made by the petitioner and his agents for the documents, but without success. They have appealed to Mr Caesar, the last trustee in the sequestration, who is now abroad. He has no recollection of what has become of them, but believes it likely that when leaving Edinburgh he returned them to the Sheriff-Clerk. The Sheriff-Clerk has made a thorough search but is unable to find any trace of them. The Accountant of Court has also been applied to, but can give no information. The petitioner believes that the process and claims are irretrievably lost.”

In these circumstances the petitioner craved the Court to grant authority to him to take all necessary steps for the division of the estate notwithstanding the loss of the claims and other documents; to authorise advertisement setting forth the loss of the claims, and requiring creditors or their representatives, other than the two whose claims had been preserved, to lodge claims in the statutory form within a month, under certification that the assets of the estate should be divided among such creditors or representatives of creditors only as should lodge claims within that period; and to grant warrant to the petitioner to divide the estate among such creditors or representatives of creditors as should have so lodged claims, all claims being disposed of in accordance with the provisions of the Bankruptcy Act.

Certain of the creditors lodged answers, in which while admitting the facts stated by the petitioner they objected to being called on of new to produce vouchers for their claims, which it would be necessary for them to do if they were to “lodge claims in the statutory form.” They therefore submitted that the petitioner should be authorised to find them entitled to a ranking and dividend on their claims as appearing in the sederunt-book.

The Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), sec. 49, enacts that “to entitle a creditor to vote or draw a dividend he shall be bound to produce at the meeting or in the hands of the trustee, an oath to the effect and taken in manner hereinbefore appointed in the case of creditors petitioning for sequestration, and the accounts and vouchers necessary to prove the debt referred to in such oaths.”

The petitioner objected to the respondents' proposal being given effect to, and referred to Skirving's Trustee, October 18, 1883, 11 R. 17, where the interlocutor pronounced was in identical terms with what the petition sought here. On the question of competency the petitioner argued that there was no doubt here as to the existence and nature of the sequestration proceedings. The sederunt-book afforded ample evidence of the petition and what followed thereon.

The respondents submitted that owing to the loss of the vouchers originally lodged by them they would be unable to lodge new claims in terms of the statute. Section 50 of the Bankruptcy Act afforded no help, for it merely gave a creditor an extension of time for finding his vouchers. Questions were likely to arise here as to the rights of some of the creditors, and these might be prejudiced if the petition were granted. The respondents at the same time called the attention of the Court to the case of Anderson, January 9, 1884, 11 R. 405, where the Second Division had refused a precisely similar petition. The distinction taken there between that case and the case of Foulis, July 18, 1872, 9 S.L.R. 631, was that in the former the process itself and the foundation of the process had disappeared. It was so in the present case also.

At advising—