Scottish Court of Session Decisions

Upon 6th September 1876 the estates of William Chalmers, sometime steamboat owner, Clynder, Roseneath, in the county of Dumbarton, were sequestrated, and John M'Queen Barr, accountant, Glasgow, was thereafter duly elected trustee. Mr Barr nentered upon the possession and management of the sequestrated estates, and realised the whole estates so far as available, but the sum obtained was insufficient to pay the expenses of sequestration and his commission, and he was exonered and discharged upon 5th January 1880. The bankrupt never received his discharge.

Upon 19th December 1890 Messrs William Black & Sons, merchants, Jamaica Street, Glasgow, presented a petition to the Second Division of the Court of Session, setting forth that they were creditors of the said William Chalmers, and as such were ranked in the said sequestration for the amount of £60; that since the date of the trustee's discharge it had come to their knowledge that the bankrupt was interested in an asset which was not discovered during the currency of the sequestration, and praying the Court to order intimation, and thereafter to remit to the Lord Ordinary on the Bills to appoint a meeting of the creditors of the said William Chalmers to be held with the view of having a new trustee appointed and the sequestration revived.

After intimation had been ordered and answers lodged on behalf of the bankrupt, it was explained for the petitioners that the asset they had discovered consisted of a piece of ground—the title of which stood in the name of the bankrupt—through which the avenue to a villa at Clynder ran, and without the use of which the villa would be isolated and its value greatly impaired, and that the value of the asset would probably be at least £50. It was argued for them that they were entitled to have the prayer of their petition granted, and that the recent case of The Northern Heritable Securities Company, Limited v. Whyte, November 21, 1888, 16 R. 100, was an authority in support of that petition.

It was explained for the bankrupt that his total debts amounted to £2200, and that the ground in question was held in trust for his brother, and it was argued that this was an appeal to the nobile officium of the Court, in whose discretion it lay to grant or refuse the prayer of the petition; that the petitioners could not have sequestration revived as a matter of right; and that seeing the alleged asset was too small, after paying the expenses already incurred and proposed to be incurred in the sequestration, to pay the petitioning creditors, whose debt was a small proportion of the entire liabilities, not more than an infinitesimal sum at most, the Court should not grant the prayer of the petition, especially after the lapse of eleven years since the trustee's discharge, and when to do so would destroy the business credit the bankrupt has been slowly and steadily acquiring in his efforts to earn a livelihood. There was no suggestion that the bankrupt had fraudulently cancelled any asset.

At advising—