Scottish Court of Session Decisions

The estates of Henry Albert Edward Roberts, Yarnspinner, Galashiels, were sequestrated on 8th October 1894. In 1897 he presented a petition for his discharge. In this petition the Lord Ordinary ( Pearson), on 26th january 1898, pronounced an interlocutor, whereby, in respect of no further appearance on behalf of the trustee, and that none of the creditors had appeared to state objections, he found the bankrupt entitled to his discharge as craved, and appointed him to appear and make a declaration in terms of the statute, and in respect of his state of health granted a commission to take the declaration.

In November 1900, Stanley Roberts, Inverleith Terrace, Edinburgh, was appointed curator bonis to the bankrupt Henry A. E. Roberts, who had become insane, and on 22nd December 1900 he was sisted as a party to the petition.

The curator then stated that the bankrupt was not in a condition to make a declaration under section 147 of the Bankruptcy Act 1856 (quoted in rubric), and moved that a declaration by himself be substituted. A medical certificate was obtained at the instance of the Lord Ordinary.

The Lord Ordinary ( Pearson) reported the case to the First Division, with the following opinion:—“This petition for the discharge of a bankrupt was presented on 9th July 1897, and on 26th February 1898 the bankrupt was found entitled to his discharge.

Thereafter the bankrupt became of unsound mind, and a curator bonis was appointed to him on 6th November 1900. But for this circumstance the next step would be for the bankrupt to make a declaration or oath in terms of section 147 of the statute, that he ‘has made a full and fair surrender of his estate, and has not granted or promised any preference or security, nor made or promised any payment, nor entered into any secret or collusive agreement or transaction to obtain the concurrence of any creditor to his discharge.’

There is no provision in the statute for the case of the bankrupt not being of capacity to make the declaration.

The curator bonis moved that I should appoint him to do so to the best of his knowledge and belief, and should thereupon pronounce the final deliverance of discharge. I thought it right to obtain a certificate as to the bankrupt's capacity, as the fact of his being under curatory did not necessarily negative his capacity to make such a declaration. The certificate now lodged bears (1) that it would be injurious to his health to make such a declaration, and (2) that he is quite incapable of understanding the nature or effect of it.

In the event of the death of a bankrupt without emitting a declaration, it has been held that it may be taken by his representative ‘to the best of his knowledge and belief’— Robertson's Trustees, 1842, 4 D. 627; Keiller, 1842, 4 D. 742. The present case seems to fall within the same principle, and it would be unfortunate if when all else is regular it were impossible to authorise a step so obviously for the benefit of the estate. But as it is a casus improvisus under the statute, and may be regarded as an exercise of the nobile officium, I have thought it proper to report the case.”

In addition to the authorities mentioned in the Lord Ordinary's opinion, counsel for the petitioner cited 2 Bell's Comm. (M'Laren's ed.), p. 372; and suggested that the Court might dispense with the declaration under section 147.