Scottish Court of Session Decisions

David Hunter, builder in Edinburgh, became bankrupt, and was sequestrated on 18th January, 1833. He was discharged under a composition-contract of 1s. 6d. per pound, on 15th August following. At the date of his sequestration, William Lindsay, quarrier, was a creditor to the amount of £24, 17s. 8d. Lindsay did not rank on the estate; but, meeting Hunter after his discharge, in November, 1833, he obtained a bill from him to the amount of £12, on account of the above debt. When the bill fell due, Lindsay incarcerated Hunter for non-payment, and Hunter offered a bill of suspension, under which the above facts were proved by reference to the oath of Lindsay. Hunter therefore pleaded, that as the bill was given for no value, and for a debt which was discharged, it could not be the foundation of diligence; and that it was an illegal document, and ineffectual, in reference to the discharge under the Bankrupt act.

Lindsay answered, that though Hunter had been effectually discharged of the debt, except as to payment of the composition, yet, as he was sui juris, it was just as competent for him afterwards to revive the obligation as it was to enter into any other contract; and, accordingly, he had revived the old debt, to the extent of £12, by his bill in November. As there was no allegation of this being collusively stipulated prior to the discharge, it was an unexceptionable transaction in every point of view.

The Lord Ordinary, “in respect that the charger admits that the bill charged on was granted in payment of a debt, of which the suspender had been discharged, and that no new value was given, passed the bill.”

Lindsay reclaimed.