Scottish Court of Session Decisions

The first matter I have to deal with has reference to the form in which this petition is presented. It was maintained by the respondent in this case that I ought not to look at this petition at all, and ought to decide that it does not competently instruct insolvency and notour bankruptcy, in respect that the evidence taken by the commissioner having been taken by means of a shorthand writer, there is neither a statement in the report of the commission that it had been agreed to dispense with the signatures of the respective witnesses to their respective depositions, nor had the depositions in point of fact after having been extended been signed by the respective witnesses. I do not propose to decide this point one way or other, because it seems to me to be in the interests of the parties to have this matter brought to a head and progress made in connection with the disputes which are pending between them. Accordingly I content myself with saying, without deciding anything, that my understanding of practice is that there should be either signature to the depositions by the witnesses or the report of the commission ought to contain a statement to the effect that those signatures have been by agreement dispensed with. But then I come to the more substantial argument which was advanced by the respondent in resisting the application for sequestration. The respondent has appeared here to-day, and she does so in respect of a minute which was lodged on her behalf by her counsel. In that minute what is said by the respondent is (1) that there is no written evidence that the debtor is notour bankrupt, (2) that the debts in respect of which the charges produced were given have been paid or satisfied, (3) that the debtor is not insolvent, but is able to meet her obligations as the same fall due, (4) that the voucher of the petitioner's debt is a bill dated 30th December 1909, drawn by Mr John Robertson, solicitor, Edinburgh, who is the law agent of the petitioner, and who at the date of said bill was the law agent of the debtor, forming part of a series of transactions between Mr Robertson and the debtor extending over a period of years; that the said John Robertson has never attempted to do diligence or to raise action upon the said bill; that no value was granted to the debtor for the said bill, and that in any event upon a true accounting between the debtor and the said John Robertson the bill was paid or compensated before its endorsation by Mr Robertson to the petitioner; and (5) that the debtor is willing and hereby offers to consign in Court the amount of the said bill or to pay the same if required.

Now it was argued by the respondent's counsel that she was entitled to rebut the presumption of insolvency which arises from the fact that certain charges of payment had been made and that these charges had expired without payment having been made. And the mode in which it was maintained that that presumption was successfully rebutted was this, that payment had in point of fact been made of the debts upon which the charges for payment had been given. Now there has been submitted to me written evidence, which I accept, that the debts in respect of which charges for payment had been made have been paid. The respondent, founding upon section 29 of the Bankruptcy (Scotland) Act 1913, asks me now to dismiss this petition in respect of that evidence of payment of the debts upon which there had been charge, coupled with this, that she now expresses her willingness, as she has done in her minute, to make consignation of the amount of her debt to the petitioner Mr Laird. The petitioner concedes that section 29 is applicable to the present situation, where nothing more has been done than to pronounce a first order in the sequestration, and the only point which the petitioner took in reply to the offer of consignation which was now made was this, that the circumstances are not those in which consignation is appropriate, and that accordingly consignation if made in the present circumstances would not amount in the sense of the language of the section to satisfaction. I am of opinion that in the peculiar circumstances of this case, as they have been disclosed to me in the argument which has been addressed to me by counsel and in the formal statements which I have read from the respondent's minute, if the respondent makes consignation to an extent to

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