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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Appeal - Partridge [1873] ScotLR 11_115 (6 December 1873) URL: http://www.bailii.org/scot/cases/ScotCS/1873/11SLR0115.html Cite as: [1873] ScotLR 11_115, [1873] SLR 11_115 |
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Page: 115↓
[Sheriff of Midlothian.
Held that section 16 of the Bankrupt Scotland Act recognised the competency of granting a petition for the appointment of a judicial factor on an estate after sequestration, but before the appointment of a trustee.
This was an appeal from the deliverance of the Sheriff of Midlothian on a petition presented to him by Frederick John Partridge, of the firm of Matthew, Wright, & Partridge, London, and his mandatory, with consent and concurrence of Peter Cunningham, Stockbroker, Edinburgh. The petition
Page: 116↓
set forth that the estates of James Kirk, grocer, Edinburgh, were sequestrated on 29th November 1873, but that a trustee could not be appointed under the sequestration before the 10th of December; that there was great danger that the estate should he delapidated and dissipated before a trustee could be appointed, and that the petitioners, as creditors on the estate, and in virtue of sections 16 and 20 of the Bankruptcy (Scotland) Act, 1856, craved the Court to appoint a judicial factor to take charge of the estate. The Sheriff-Substitute ( Hallard) pronounced the following interlocutor:—
“ Edinburgh, 2d December 1873—The Sheriff-Substitute having heard the petitioners' solicitor; Finds that the statute does not authorise the appointment of a judicial factor after sequestration; Therefore refuses the desire of this petition, and decerns.
Note—The present application is founded upon sections 16 and 20 of the statute. Of these two provisions the latter merely empowers the Sheriff in general terms ‘to take such measures in the meantime as may be necessary for preserving the debtor's estate and effects within his jurisdiction, under the provisions of this Act.’ The power, to appoint a judicial factor is to be found only in section 16.
It cannot be said that the terms of this section are free from douht. Appointment of a judicial factor may be prayed for in the petition for sequestration itself, where the applicant is a creditor. It may be prayed for in a separate petition. But the introductory words of the section seem to imply that the time at which such an appointment is competent can only be found in the interval, longer or shorter, as the case may be, between presentation of the petition for sequestration and the award of sequestration. It is competent to appoint a judicial factor ‘whether sequestration can forthwith be awarded or not’ before sequestration. There is certainly no express power given to make such an appointment after sequestration.
Protection of the estate after sequestration, and before the election of a trustee, is expressly provided for by section 17th.”
The petitioner appealed to the Court of Session under section 170 of the Bankruptcy Act. Nicol Bailie & Co., as creditors in the estate, appeared and supported the interlocutor of the Sheriff-Substitute, and maintained that as no affidavit or vouchers had been lodged with the petition, it was incompetent.
At advising:—
The Court reversed the interlocutor of the Sheriff and granted the prayer.
Counsel for Appellant— Crichton. Agents— Pearson & Robertson, W.S.
Counsel for Objectors— Robertson. Agent— D Hunter, S S.C.
