Scottish Court of Session Decisions

On 14th April 1909 Alan Drummond, accountant, Edinburgh, presented in the Bill Chamber a petition for the recal of the sequestration of his estates awarded on 1st April on the petition of the Clunas Tiles and Mosaics, Limited, and James Shiels Alexander, C.A., the official liquidators thereof.

The sequestration had been awarded under the following circumstances:—On 11th March 1909 the Lord Ordinary on the Bills ( Skerrington) pronounced a deliverance granting warrant to cite Drummond, and diligence to recover evidence of notour bankruptcy. On 26th March 1909 Drummond, having failed to produce the documents to the Commissioner, was cited to appear before the Lord Ordinary on the Bills to produce “(1) extract registered protest of a bill for £40, dated 30th June 1908, granted by him in favour of Herbert Lawton Warden, S.S.C., Edinburgh, which protest was recorded in the Books of Council and Session on 15th December 1908; (2) execution of charge endorsed upon the said extract registered protest made on the twenty-fourth day of December 1908; and (3) the said bill itself.” On 31st March 1909 he deponed that he had destroyed the said documents on 20th March 1909. On the same occasion Robert Gardiner, messenger—at-arms deponed—“On 24th December 1908 I charged Alan Drummond, accountant, 15 Queen Street, Edinburgh, upon an extract registered protest of a bill for £40, dated 30th June 1908, granted by him in favour of Herbert Lawton Warden, S.S.C., Edinburgh, which protest was recorded in the Books of Council and Session on 15th December 1908. I returned an execution of that charge. I have not got a duplicate. I have a copy of the charge given, but not of the execution. I produce the copy. I have an entry in my books relative to giving this charge. It is merely ‘executing protest, Herbert Lawton Warden, 3s. 6d.’ I will produce an excerpt from my books. I have nothing more in writing which can instruct that I had given the. charge to Alan Drummond. It is the fact that I did give Alan Drummond a charge on that extract registered protest.” On 1st April 1909 the Lord Ordinary on the Bills ( Mackenzie), finding that the notour bankruptcy of Drummond and the other facts necessary to be established had been proved, granted sequestration of Drummond's estates.

Drummond in his petition for recal averred, inter alia—“In point of fact the necessary productions were not in process or before the Lord Ordinary at the time. No evidence of notour bankruptcy was produced, and the said Alan Drummond was not notour bankrupt as at the date of the presentation of the petition.”

Answers were lodged for the Clunas Tiles and Mosaics, Limited, in which the said

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petition for sequestration, the procedure thereon, and the productions lodged therein, were referred to.

On 29th April the Lord Ordinary on the Bills ( Guthrie) refused the petition.

The petitioner reclaimed, and argued—It was necessary that there should be notour bankruptcy at the date of sequestration, and in this case there was no proper evidence of it. Written evidence of notour bankruptcy was required—Goudy on Bankruptcy (3rd ed.) 147—and here there was merely oral testimony, which was incompetent to prove it. The expired charge must be produced, and was the only competent proof of the proceedings of the messenger-at-arms—Dickson on Evidence, section 1262; Haswell v. Magistrates of Jedburgh, 1714, M. 12,270; M'Kean, 1694, M. 3784. The evidence, therefore, being insufficient, the sequestration must be recalled—Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), sections 13, 26, and 31. If there was an ex facie defect dating from prior to the award of sequestration, sequestration must be recalled— Ballantyne v. Barr, January 29, 1867, 5 Macph. 330, 3 S.L.R. 189.

Argued for the respondent—Here there was a purely technical default. All the statutory requisites for sequestration were present—Bankruptcy (Scotland) Act 1856 ( sup. cit.), sections 9 and 13; Debtors (Scotland) Act 1880 (43 and 44 Vict. cap. 34), section 6. Notour bankruptcy was clearly proved. A man once notour bankrupt remained so—Bankruptcy (Scotland) Act 1856, section 9. This section of the statute was founded on the common law as laid down by Lord Corehouse in the case of M'Hardy v. Adam, June 18, 1833, 11 S. 735. There was no authority for the statement that the Court was held to the production of written evidence to prove notour bankruptcy. A copy of the charge had been produced. It was the best evidence that was available, because the bankrupt himself had destroyed the charge. The cases in Morrison's Dictionary cited by the petitioner dealt with what was a competent citation. The distinction between Ballantyne v. Barr ( sup. cit.) and the present case was that the former dealt with the title of the creditor, who under the provisions of the statute must produce voucher of debt.