Donald Robb v. James Forrest [1831] UKHL 5_WS_740
Held (affirming the judgment of the Court of Session)—1. That it is competent for a creditor to apply for sequestration, whose debt is of the statutory amount, but consists partly of a sum originally due to himself, and partly of a debt purchased by him at an undervalue, subsequent to the bankruptcy: 2. That the assignation of such a debt requires to be written on a deed, and not on an ad valorem stamp: 3. That as no objection was taken to the assignation, in respect of its being written on a wrong stamp, until after sequestration was awarded, and as there was no room to suppose that the Court was aware of the objection, and as the defect was afterwards supplied, the sequestration was valid.Robb presented a petition to the Court of Session, praying for a recal of the sequestration of his estates which had been awarded at the instance of Forrest under the Bankrupt Act. This he did on the following grounds:1. The debt of Forrest, the sequestrating creditor, was not of the statutory amount to entitle him to present the application. It was stated in his affidavit as amounting to 135 l ., but of this 55 l . consisted of an account originally due to Young and Company, and assigned by them, subsequently to Robb's bankruptcy, for 18 l . This purchase was illegal, as being, after bankruptcy, forPage: 741 ↓
2. The assignation by Young and Company was null and void, as bearing to be an assignation from Young and Company, and the individual partners of the Company, while it was only subscribed by Thomas Young and Company, and not by the individual partners:3. And the assignation was null, as being extended on an ad valorem instead of a common deed stamp.The Lord Ordinary on the Bills having refused the petition, Robb reclaimed.The Court, before answer, remitted to the Solicitor of Stamps and to the Deputy Keepers of the Signet to report as to the practice in Scotland as to using ad valorem stamps or common deed stamps in the preparation of such assignations as the one in question. The report was returned, that “upon a transaction such as the one in question it is the usual practice of conveyancers to write the assignation upon a valorem conveyance stamp.” Thereupon the Court repelled the other objections, but ordered Cases upon the objection in regard to the stamp. Forrest now sent the assignation to London to be stamped, where it was accordingly stamped with a common deed stamp of 35s., over and above the previous stamp of 10s. The Court then, “in respect the deed is now produced stamped, recalled the order for cases; refused the prayer of the reclaiming note; and adhered to the interlocutor of the Lord Ordinary complained of, in toto; and remitted to the trustee to consider how far the defender's expenses of process, with one half of the expense incurred in procuring the report of the Solicitor of Stamps and Keeper of Signet, ought to be defrayed out of the sequestrated estate.” *Footnote
* 8 Shaw and Dunlop, pp. 839 and 1035.Page: 742 ↓
Robb appealed. No appearance was made for the respondent.Appellant. —1. There is no lawful evidence that the respondent was a creditor who had a debt owing to him to the extent required by the statute. The deed of assignment, said to have been granted by Thomas Young and Company, in favour of the respondent, was not validly or legally executed, so as to transfer their debt to the respondent; and at the time it was produced and founded on it was written upon a wrong stamp, and could not therefore, even if valid in other respects, bear faith in judgment, or be founded on, and made the ground for awarding sequestration. It was irregular and incompetent to remit to the Solicitor of Stamps and Deputy Keepers of the Signet to report as to this point, and to affirm an interlocutor which (by the very circumstance of the subsequent stamping) is admitted by the Court of Session to have been erroneous at the time it was pronounced.Lord Chancellor .—My Lords, this is a pauper case, in which the means of the unfortunate appellant have been completely exhausted by the expense of the litigation, and he has been obliged to come here in forma pauperis. No person appears in support of the judgment, those concerned on the part of the respondent deeming that the grounds of that judgment were so clear as to require no argument in its support; but in fact the better reason (for the former turned out, in the event, to be by no means sufficient) was the extremely small amount of the matter in litigation. The question is, whether, in a bankruptcy, (or, as it is called in Scotch practice, a sequestration,). there had been, or not, a sufficient debt to support the prayer for the sequestration,—what we should call in bankruptcy a sufficient petitioning creditor's debt. Various objections were taken in the Court below and here in last resort, and they ultimately resolved themselves chiefly into one; that a certain instrument of assignation, necessary to make up the debt to the hundred pounds required (the amount without that being only about 80 l .), was defective. It was objected to on various grounds, with only one of which I will trouble your Lordships, and that was one which induced me to postpone moving judgment, because I conceived that the case had not been sufficiently considered in the Court below. The instrument, it appears, was not upon the proper stamp; it was on an ad valorem stamp,Page: 743 ↓
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The House of Lords ordered and adjudged, That the interlocutor complained of be affirmed.Solicitors: Evans, Stevens, and Flower,—Solicitors.