Scottish Court of Session Decisions

In the sequestration of James Trowsdale & Son, contractors at Peebles and Innerleithen, and at Stockton-on-Tees, Durham, the trustee, Thomas Steven Lindsay, under a warrant granted by the Sheriff of Edinburgh, examined various parties and recovered documents relative to the bankrupts' affairs, and on 21st January 1867 he examined, inter alios, William Bryson, C.E., Darlington, Engineer of the Forcett Railway Company, who produced various books and writings having reference to the line of the Forcett Railway now in course of construction. Bryson, on 14th March 1867, petitioned the Sheriff to ordain the trustee to deliver back the books and documents, reserving right to the trustee thereafter to call for copies, or excerpts, or the principals when required, alleging that the want of the books and documents caused. great inconvenience to the petitioner and the railway company.

The Sheriff-substitute (Hallard) sustained the prayer of the petition, and ordained instant delivery to Bryson of the books and documents “which were produced by him at his examination, and voluntarily delivered by him to the said trustee, reserving to the trustee to apply for delivery of said documents and others, under the 91st section of the Bankrupt Statute.”

The trustee presented a note of appeal to the Lord Ordinary against this deliverance.

The Lord Ordinary ( Kinloch) recalled the deliverance, and remitted to the Sheriff to allow the trustee such farther opportunity as might be reasonable to examine the documents in question, or take copies of the same; and after such opportunity had been had, to ordain the documents to be delivered to the petitioner, Bryson, reserving all questions as to the right of property in the documents, and finding neither party entitled to expenses.

His Lordship added this note:—

“The Lord Ordinary cannot adopt the extreme view contended for by either party.

“He has no doubt that a party producing documents under a statutory examination in bankruptcy is entitled, by means of a summary application in the process of sequestration, to have the documents ordered to be returned to him when the purposes of the statute have been served.

“On the other hand, he is of opinion that the Sheriff, when he conducts the examination, and any commissioner who holds his delegated authority, is entitled, in the course of the examination, to order documents to be produced, and that this does not require a separate application and warrant.

“But he conceives that such production is, like the examination generally, only for the purpose of informing the mind of the trustee, and that so soon as this object is served, the party producing the documents is entitled to have them returned.

“The Lord Ordinary does not think that the statutory examination can be converted into a proceeding for determining the right of property in the documents. It is a different form of process which must be adopted for that purpose.

“The Lord Ordinary finds neither party entitled to expenses in the appeal, as the course which he has taken is not either party contended for.”

The trustee reclaimed, and asked the Court “to recal the interlocutor submitted to review; to find that the reclaimer is entitled to retain such of the documents that have been produced as belong to the bankrupts; and to remit to the Lord Ordinary with instructions to him to allow an inquiry in regard to the right of ownership of the bankrupts in the documents in question, or to ordain him to remit to the Sheriff to make, such inquiry, and thereafter to ordain the Lord Ordinary to find, or to remit to the Sheriff to find, that the reclaimer is only bound to deliver up such of the documents as are not the property of the bankrupts; or to do otherwise,” &c.

A. Moncrieff for reclaimer.

B. Watson for respondent.

The Court adhered.