Scottish Court of Session Decisions

This was a note to the Lord President for Melrose-Drover, Limited, incorporated under the Companies Acts 1862 to 1898, and having their registered office at 17 Mitchell Street, Leith; James Heddle & Company, wholesale wine and spirit merchants, Mitchell Street, Leith; and George Bird, C.A., Edinburgh, trustee on the sequestrated estate of James Heddle, residing at 1 James Place, Leith, the respondents in the appeal at the instance of Mr Heddle referred to below.

On 12th April 1905 the Sheriff-Substitute of the Lothians (GUY) pronounced the following interlocutor in a petition by Mr Heddle for his discharge in his sequestration—“The Sheriff-Substitute … Finds that it is admitted by the petitioner (1) that he presented a petition for his discharge to this Court on 24th March 1904, averring that no dividend had been paid to his creditors, but that his failure to pay five shillings in the pound had arisen from circumstances for which he could not justly be held responsible; (2) that in that petition the Sheriff-Substitute by interlocutor dated 4th May 1904, and after having heard the petitioner and the agent for the said Melrose Drover, Limited, James Heddle & Company, and the trustee … found that the petitioner had failed to prove that the failure to pay a dividend of five shillings per pound out of his estate had arisen from circumstances for which he could not be justly held responsible, and therefore refused the petition and dismissed the

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same; (3) that the petitioner appealed against said interlocutor to the First Division of the Court of Session; (4) that by interlocutor dated 21st June 1904 the Lords, after having considered the appeal and whole process and heard the appellant personally, refused the appeal; and (5) that the petitioner's estates have yielded no dividend and the creditors have received nothing: Therefore finds that in respect of the provisions contained in section 6 of the Bankruptcy and Cessio (Scotland) Act 1881, the present petition is incompetent; refuses the petitioner's motion for leave to amend the petition or to sist same; refuses the petition, and decerns.”

The Bankruptcy and Cessio (Scotland) Act 1881 (44 and 45 Vict. c. 22), sec. 6, enacts:—“Notwithstanding anything contained in the Bankruptcy Acts, the following provisions shall have effect with respect to bankrupts undischarged at the commencement of this Act and to bankrupts whose estates may be thereafter sequestrated, that is to say—(1) A bankrupt shall not at any time be entitled to be discharged of his debts unless it is proved to … the Sheriff … that one of the following conditions have been fulfilled:—(a) That a dividend or composition of not less than five shillings in the pound has been paid out of the estate of the bankrupt, or that security for payment thereof has been found to the satisfaction of the creditors; or ( b) that the failure to pay five shillings in the pound, as aforesaid, has in the opinion of … the Sheriff … arisen from circumstances for which the bankrupt cannot justly be held responsible.… (4) In the event of a discharge being refused under the provisions of this section, the bankrupt shall at any time, if his estate shall yield, or he shall pay to his creditors, such additional sum as will, with the dividend or composition previously paid out of his estate during the sequestration, make up five shillings in the pound, be entitled to apply for and obtain his discharge in the same manner as if a dividend of five shillings in the pound had originally been paid out of his estate.”

Against this interlocutor Mr Heddle, on 20th April 1905, appealed to the First Division, and on 28th June 1905 the present note was presented by the respondents in that appeal

The prayer of the note was as follows—“May it therefore please your Lordship to move the Court to ordain the appellant, the said James Heddle, to print and box to the Court within ten days the note of appeal, petition, interlocutors, and such productions as he intends to found upon in support of the appeal; and further to ordain the appellant to find caution for the expenses of the appeal, and that within ten days, or to do otherwise in the premises as your Lordship shall seem proper.”

At the hearing counsel for Melrose-Drover, Limited, stated that although Mr Heddle's appeal was presented in April 1905 he had taken no steps to prosecute it; that he had neither boxed nor printed the appeal; that on 2nd and 12th June the respondents' agents had written him requesting him to print the necessary documents, but that he had failed to do so. In these circumstances he craved the Court to grant the prayer of the note. The question of printing lay in the discretion of the Court, seeing that the provisions of the Court of Session Act 1868 did not apply to appeals like the present which arose out of the Bankruptcy Acts. There was no Act of Sederunt dealing with the present class of appeals— Lamont v. Lamont's Trustee, Jan. 29, 1904, 6 F. 336, 41 S.L.R. 253; Bankruptcy (Scotland) Act 1856, sec. 170; Bankruptcy and Cessio Act, 1881, sec. 6. (3). As to Caution.—The appellant here was an undischarged bankrupt and should be ordained to find caution.

Mr Heddle appealed, and argued that he should in the circumstances be allowed to proceed with his appeal without finding caution, and that printing should be dispensed with. He referred to the following authorities—Mackay's Manual, p. 635; Ballinten v. Connon, July 19, 1851, 13 D. 1399; Heggie v. Heggie, June 6, 1855, 17 D. 802.