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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gilmer v. Henry [1866] ScotLR 1_170_1 (20 February 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0170_1.html Cite as: [1866] SLR 1_170_1, [1866] ScotLR 1_170_1 |
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Page: 170↓
Suspension of a charge on a bond granted for payment of a composition held (aff. Lord Barcaple) to be barred by section 143 of the Bankruptcy Act.
This was a suspension of a charge given upon a bond for payment of a composition in bankruptcy, which was refused by Lord Barcaple. The suspender reclaimed, and the Court to-day, without calling on the respondent, adhered.
It appeared that the parties had entered into a partnership in 1863, and carried on business in Leith until January 1864, under the firm of Gilmer, Henry, & Company. The company was then sequestrated. Under the contract of copartnery each partner was to advance capital to the extent of £300, but Gilmer having only advanced £150, Henry claimed as a creditor on the estate of the company for £150 as capital over-advanced by him. On 1st February 1864 the suspender offered a composition of 20s. in the pound on all debts due by the firm at the date of the sequestration, and also to provide for the expenses of the sequestration. This offer was entertained, and on 3d March 1864 it was accepted, the composition being made payable by instalments at three and six months respectively, after the suspender's final discharge. The respondent, by his mandatory, was present as a creditor at the meetings when the composition was offered and agreed to.
By section 143 of the “Bankruptcy Act, 1856,” it is enacted that “neither the bankrupt nor his successor offering the composition, nor the cautioner for the composition, shall be entitled to object to any debt which the bankrupt has given up in the state of his affairs as due by him, or admitted without question, to be reckoned in the acceptance of the offer of composition, nor to object to any security held by any creditor, unless in the offer of composition such debt or security shall be stated as objected to, and notice in writing given to the creditor in right thereof.”
The suspender argued that the provision in this section was not applicable to this case (1) because in the oath admitted by the suspender and respondent to the state of affairs the debt now claimed was not said to be due by the company; and (2) because the debt was not properly a company debt, but a debt due if at all by the suspender as an individual. The cases of Black, 15th December 1859 ( 22 D. 215), and Hatley, 23d May 1861 ( 23 D. 881), were referred to.
The Lord President thought, if it were necessary to decide the point, that this was a debt due by the company, and that that was a sufficient ground for sustaining the charge. But whether it was or not, it was treated as a company debt; the respondent in respect of it appeared by his mandatory at the meetings; and although it is not inserted in the state of affairs sworn to, yet it was inserted in a document referred to in the oath, containing lists of the debts due by the company and by each of the partners, where it was treated as a claim against the company.
The reclaiming note was therefore refused.
Counsel for Suspender— Mr Gifford and Mr Arthur. Agent— Mr A. D. Murphy, S. S. C.
Counsel for Respondent— Mr Mackenzie and Mr Alex. Blair. Agents— Messrs Murray & Hunt, W.S.
