GEORGE BROWN v EWING & Ors (Court of Session)

The application was opposed; and, after some procedure, a remit was made to the sheriff-depute of Fifeshire to examine the votes of the creditors produced in the sequestration, and to report whether the petitioner has the necessary concurrence in number and value to his discharge.

The opposing creditors stated two objections, 1 st , That there was no mention of the cautioner's name at the first meeting, although this is required by the 59th section of the bankrupt statute. But the reporter was of opinion that this circumstance was not fatal to the offer; and, in support of that opinion, referred to Bell's Com. B. iii. tit. 4, § 17.

d , That there were not nine-tenths in number and value of the creditors assembled at the second meeting in favour of the offer; and such being the fact, without the concurrence of the whole creditors, the Court could not competently sanction or entertain the application.

The reporter, being of opinion that there was not the statutory concurrence originally of nine-tenths, held that, according to the express enactment of the statute, the application was incompetent; and that the question had been so determined in the case of Melliss v. Royal Bank of Scotland, 22d June 1815.

The Court entertained doubts on the former point, but did not consider it necessary to decide it; for their Lordships were unanimous that, in order to authorise the present application, the statute imperatively requires either the concurrence of nine-tenths in number and value of the creditors attending the meeting called to consider the offer of composition, or the subsequent acceptance of the offer of composition by every creditor without exception.