Scottish Court of Session Decisions

This is an appeal from a deliverance of the Sheriff-Substitute of Edinburgh, by which he allowed the Rev. John Ewen, a creditor in the process of sequestration of the estates of Henderson & Chisholm, wool merchants, Leith, who voted for the respondent in a competition with the appellant for the office of trustee, to amend the claim upon which his vote had been given at the meeting of creditors for election of a trustee. The appeal is brought under the following circumstances:—At the meeting in question two affidavits for Mr Ewen were produced, setting forth that he was a creditor in two sums of £310, 7s. 9d., and £601, 7s. 11d. The affidavits were not framed in terms of the 60th section of the Bankrupt Act, inasmuch as the deponent did not therein value the obligation of co-obligants, and deduct such value from the debts and specify the balance. The meeting was not attended by the Sheriff, and the preses was chosen by the creditors. There was an apparent majority in favour of the respondent as trustee; but the Sheriff, who is bound by the Act to make declaration of the state of the votes, was not present. The preses reported to the Sheriff the minutes of the meeting. When the case came up before the Sheriff the same objection as before was taken to Mr Ewen's affidavits; but the Sheriff allowed him to rectify them in terms of the 51st section of the Bankrupt Act.

The question raised in this process is, whether or not the Sheriff's authority to give such a direction could competently be exercised after the vote of Mr Ewen had been given and recorded at the meeting. The Lord Ordinary on the Bills (Curriehill) adhered to the deliverance of the Sheriff, and dismissed Mr Latta's appeal.

The Court, after reviewing the course of legislation in reference to the question raised in the appeal, adhered to the interlocutor of the Lord Ordinary, holding that the 51st section of the Bankrupt Act was a remedial clause, having for its object to prevent the votes of bona fide creditors being rejected by reason of informalities in the form of their affidavits; and that in order to work out the 51st section, it was necessary that the Sheriff, when he had not been present at the meeting for the election of a trustee, when the proceedings came before him, should then have the power to comply with the provisions of the section. If this were not so, the intention of the 51st section would be defeated. It was important to observe that the 51st section did not leave it in the discretion of, but made it imperative upon, the Sheriff to call upon a creditor to rectify an oath. Had he been present at the meeting, he would have done so then. It is only after he has called upon the creditor to amend the affidavit, and he has failed to do so, that the Sheriff is entitled to reject or disallow his oath.