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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Younger & Son, Ltd Petitioners [1902] ScotLR 40_102 (14 October 1902) URL: http://www.bailii.org/scot/cases/ScotCS/1902/40SLR0102.html Cite as: [1902] SLR 40_102, [1902] ScotLR 40_102 |
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Page: 102↓
Bill Chamber.
The Bankruptcy Act 1856 (19 and 20 Vict. c. 79), sec.34, enacts—… “If the debtor shall die after the petition for sequestration has been presented, the proceedings shall notwithstanding be followed out in terms of this Act, so far as circumstances will permit.”
A creditor presented a petition in the Bill Chamber for the sequestration of a debtor's estate. On September 30th an order for service was pronounced and commission granted to recover evidence of the debtor's notour bankruptcy. On October 1st the debtor was duly cited to appear and show cause why sequestration of his estates should not be awarded. On October 4th the debtor died.
The Lord Ordinary on the Bills ( Trayner) on October 14th, without ordering citation of the representatives of the deceased debtor, found that the debtor was notour bankrupt at the date of his death, and awarded sequestration of his estates de piano.
On September 30th, 1902, Younger & Son, Limited, as creditors of Thomas Hall, publican, Bonchester Bridge, near Hawick, presented to the Lord Ordinary on the Bills a petition craving for an order to cite Hall to compear within the statutory period and show cause why sequestration of his estates should not be awarded. On the same date service and intimation in the Gazette were ordered, and commission was granted to recover evidence of notour bankruptcy and other facts necessary to be established. On 1st October Hall was duly cited to appear and show cause why sequestration of his estates should not be awarded. He died within three days thereafter, viz., on 4th October.
Thereafter the petitioners executed their commission, recovered evidence of notour bankruptcy, and lodged in the Bill Chamber a minute craving an award of sequestration of the estate of the deceased, and also an order on his representatives to cede possession of any portion thereof to which they had made up a title to any trustee to be elected thereon.
Argued for the petitioners—This motion was founded on section 34 of the Bankruptcy (Scotland) Act of 1856 (quoted in the rubric). The report of commission showed that the bankrupt was at the date of his death notour bankrupt, and
Page: 103↓
all the requisites of the statute had also been complied with. It was unnecessary to search for and cite the representatives of the deceased for their interest, a course which if ordered by the Court might in some instances be found to be an impossible task. An immediate award should therefore be made. In this case the matter was urgent, in view of the near approach of the Licensing Court, where the trustee to be elected would become an applicant for a transfer of the licence.
The Lord Ordinary officiating on the Bills (
The following was the interlocutor:—
“The Lord Ordinary having resumed consideration of the petition with the writs produced, together with a minute now given in for the petitioners, execution of intimation, copy of the Edinburgh Gazette, and other productions made therewith, and heard counsel for the petitioners, Finds that the respondent Thomas Hall died after the presentation and service of this petition, and (as appears from the Report of Commission No. 10 of process and execution of charge No. 6 of process) was notour bankrupt at the date of his death on 4th October 1902: Sequestrates the estates and effects of the said Thomas Hall, publican, Bonchester Bridge, near Hawick, now deceased, in terms of the Bankruptcy (Scotland) Act 1856, and Acts explaining and amending the same, and declares the same to belong to his creditors for the purposes of said Acts: Ordains any successor who has made up a title to or is in possession of the estate of the said deceased Thomas Hall to transfer the same, so far as liable for the debts of the deceased, to the trustee to be elected by his creditors: Appoints the creditors to hold a meeting at the time and place mentioned in the said minute, viz., on Friday, the 24th day of October 1902, at 12.30 o'clock afternoon, within the Tower Hotel, Hawick, to elect a trustee or trustees in succession and commissioners as directed by the statute, and remits to the Sheriff of the counties of Roxburgh, Berwick, and Selkirk at Jedburgh to proceed in manner mentioned in the said statutes.
Counsel for the Petitioners— T. B. Morison. Agents— P. Morison & Son, S.S.C.
