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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Shaw and Mandatory, Petitioners [1867] ScotLR 5_171 (14 January 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0171.html Cite as: [1867] SLR 5_171, [1867] ScotLR 5_171 |
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Page: 171↓
Petition for sequestration of estates of foreign bankrupt, under sect. 218 of English Bankruptcy Act 1861, 24 and 25 Vict., cap. 134, presented by official assignee of bankrupt and his mandatory, refused, on the ground that the mandatory had no authority to present the petition. Opinion, that the Court are not bound under section 218 of 24 and 25 Vict., c. 134, to award sequestration without inquiry and exercise of discretion.
This was a petition for sequestration of the estates of George Millar, sometime of Collingwood, and afterwards of Castlemaine, in the colony of Victoria, Australia, presented by Henry Steel Shaw, of Melbourne, official assignee of Millar's estate, and by Andrew Hendry, solicitor in Dundee, factor, commissioner, and attorney of the said Henry Steel Shaw, conform to factory, commission, and power of attorney dated 25th April 1865.
It appeared from the petition that, on 10th June 1864, the Insolvency Court of the colony of Victoria “ordered, adjudged, and finally declared that the estate of the said George Millar be sequestrated for the benefit of his creditors, according to law,” conform to certified copy of the orders, adjudication, and deliverances produced. The petition then sets forth that by sect. 218 of the English Bankruptcy Act, 24 and 25 Victoria, cap. 134, entituled, The Bankruptcy Act 1661, it is enacted that, “if any person who shall have been adjudged or declared bankrupt or insolvent in India, or any of the foreign dominions, plantations, or colonies of her Majesty, shall be resident or shall be possessed of property in England, Ireland, or Scotland, or in any colony, plantation, or foreign possession of the Crown, it shall be lawful for the official assignee, trustee, or other representative of the creditors of such bankrupt or insolvent to apply for and obtain an adjudication of bankruptcy, sequestration, or insolvency against such person in the Court of Bankruptcy in England, and in the proper Court in Scotland, Ireland, and such colony, plantation, or foreign possession of the Crown respectively; and by virtue thereof the same order and disposition shall be had and taken with respect to the person and property of the bankrupt or iusolvent as would have been if he had been originally adjudged bankrupt or insolvent by the Court or tribunal so applied to;” and that “upon such application, it shall not be necessary for the assignee, trustee, or other representative of the creditors of the person so declare dbankrupt or insolvent as aforesaid, to give proof of any act of bankruptcy, or petitioning creditors' debt, or to produce any other evidence than a duly certified copy under the seal of the Court of the order or adjudication by which such person was found or adjudged bankrupt or insolvent.”
The petitioners then stated that Millar had lately succeeded to a sum of £300, which now belonged to his creditors, and craved the Court to award sequestration of Millar's estates, heritable and moveable, situated in Scotland, in conformity with the provisions of the Bankruptcy (Scotland) Act 1856, and the Bankruptcy and Real Securities (Scotland) Act 1857.
Mair for petitioners.
Lord President—I am for refusing this petition on the ground suggested by Lord Deas, that the attorney in this country has no authority to present it. But I take leave to say, at the same time, that the remedy asked in it is of so peculiar a kind that it would require a very special case to entitle any one to apply for it, particularly in such circumstances as the present. What is asked is, that sequestration should be awarded of the estates of a person domiciled in Australia, and who, for anything we know, has been there all his life, and the whole object is to recover certain debts said to be due to him in this country. The object is quite incommensurate with the magnitude of the machinery sought to be put in motion. The object of a sequestration, with all the statutory forms, is to produce a concursus of creditors in the country where the estates of the bankrupt are mostly situated. In some cases such an application may be expedient; but I should be sorry to think that we were under any obligation, without leave to exercise our discretion or to inquire into the circumstances, to award sequestration under that section whenever any one came from a colony and demanded it. That would be too strict a construction of the statute. But I merely say that for the purpose of strengthening the ground of judgment, that the petitioner has no authority for taking the present step.
Lord Deas—I agree that if this could be held to be a petition by the official assignee, important
Page: 172↓
Solicitors: Agent— J. M. Macqueen, S.S.C.
