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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> James Hutton, Petitioner [1872] ScotLR 9_367 (13 March 1872)
URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0367.html
Cite as: [1872] SLR 9_367, [1872] ScotLR 9_367

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SCOTTISH_SLR_Court_of_Session

Page: 367↓

Court of Session Inner House First Division.

Wednesday, March 13. 1872.

9 SLR 367

James Hutton,     Petitioner.

Subject_1Bankruptcy
Subject_2Trustee
Subject_3Discharge
Subject_4New Trustee — 19 and 20 Vict. c. 79, § 74.
Facts:

Where the trustee in a sequestration had been discharged, and thereafter new funds were discovered before the bankrupt himself obtained his discharge,— Held that the Court could not recognise the title of a new trustee, appointed by warrant of the Sheriff under § 74 of the Bankruptcy Act, but that the procedure adopted in the case of Thomson, Dec. 17, 1863, should have been followed.

Headnote:

The estates of Thomas Robertson were sequestrated on March 10, 1864, and George Macfarlane, accountant in Glasgow, was appointed trustee. Having realised and distributed the estate, he was discharged on June 28, 1870, and, prior to his discharge, he transmitted the sederunt book of the trust to the Accountant in Bankruptcy, in terms of § 79 of the Act. Additional funds having become available, and the bankrupt himself not having been discharged, warrant was craved from the Sheriff, at the instance of one of the creditors, to cite a new meeting of creditors for the election of a trustee. Under this petition and the Sheriff's warrant, the present petitioner was appointed trustee, and now applied to the Court for warrant to obtain delivery of the sederunt book of the trust, which had been transferred in due course from the office of the Accountant in Bankruptcy to that of the Deputy-keeper of the Records.

Harper for the petitioner.

At advising—

 Judgment:

Lord President—The circumstances in this case at once present the question as to the position and character of the trustee. Now, the 74th section of the Bankruptcy Act is the only one under which the proceedings alleged to have been held could take place. That section provides—(reads the section referred to). Now the former trustee has neither died, resigned, nor been removed. The case does not therefore come within the words of the section. Such was held to be the case in Thomson, Dec. 17, 1863, 2 Macph. 325. For in that case the Court, on an application by the old trustee, interfered in the exercise of its nobile officium, holding that the case was not within the 74th section of the statute. If that be a sound decision, it follows that the petitioner's appointment is not a good one. But the matter has received farther consideration in the case of Gentles, Nov. 22, 1870, 9 Macph. 176. After that case, it seems to me quite impossible for the Court to recognise such an appointment as here made by the Sheriff to be of any avail whatever. We must therefore refuse the application of the petitioner, until he is appointed in the form followed in the previous cases of Thomson and Gentles.

The other Judges concurred.

Solicitors: Agents for the Petitioner— Duncan & Black, W.S.

 1872

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URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0367.html