Scottish Court of Session Decisions

This was a petition presented by James Mellis, soap-boiler in Prestonpans, for recall of inhibitions. The petition proceeded on the following narrative. That in 1844 the petitioner carried on business along with Mr Wm. Thompson in Newcastle-upon-Tyne, and in Buenos Ayres and Monte Video, as merchants and commission agents, under the designation of Thompson, Mellis & Company. That the co-partnery so constituted became bankrupt, and that on 22d January 1844 a fiat was issued against them, directed to the District Court of Bankruptcy at Newcastle-upon-Tyne, and the said William Thompson and the petitioner were thereupon adjudged bankrupts. Thereafter, in pursuance of the Bankruptcy Statutes then in force in England, the petitioner surrendered, and made a full disclosure and discovery of his estate and

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effects, and in all things conformed to the said statutes, and was found entitled to and received from the Commissioner of said District Court of Bankruptcy a certificate of conformity to the requirement of the bankruptcy laws. The said certificate is dated 30th August, and was allowed and confirmed by the Court of Review in Bankruptcy, on 28th September, and entered on record, pursuant to Act of Parliament, on 17th October, all in the year 1844.

The statute 5 and 6 Vict. c. 122, sec. 37, enacts, “That every bankrupt who shall have duly surrendered, and in all things conformed himself to the laws in force at the time of issuing the fiat in bankruptcy against him, shall be discharged from all debts duo by him when he became bankrupt, and from all claims and demands made proveable under the fiat, in case he shall obtain a certificate of such conformity, so signed and allowed and subject to such provisions as hereinafter mentioned.”

That certain inhibitions had been raised against the said Thompson, Mellis & Company—Ist, an inhibition by William Henry Tilstone, merchant, London; and 2d, two inhibitions raised by Messrs Porter & Latimer, colliery owners, Newcastle-upon-Tyne, and that the debts for which these inhibitions were raised were debts incurred by the said Thompson, Mellis & Company, and the petitioner as a partner thereof, prior to the date of the certificate before referred to, and the petitioner is therefore discharged thereof. That the residence or place of business of the said William Henry Tilstone and Messrs Porter and Latimer are unknown to the petitioner, and they have no known agent in Scotland.

The prayer of the petition was—“May it therefore please your Lordships to grant warrant for serving this petition on the said William Henry Tilstone. and Messrs Porter & Latimer, and to ordain them to give in answers thereto within a short space, if so advised, and on resuming consideration of the petition, with or without answers, to recall the foresaid inhibitions in so far as the same affect the petitioner; and to grant warrant for marking the same as discharged in the record of inhibitions; or to do otherwise in the premises as to your Lordships shall seem proper.”

Asher for the petitioner.