Scottish Court of Session Decisions

The whole estates, heritable and moveable, of Thomas Harvey, merchant in Glasgow, were sequestrated under the bankrupt act, in April 1832. Harvey was proprietor of the lands of Westhorn and others, which were burdened to the extent of £42,238, and were said to be worth only £25,826. James M'Clelland, accountant in Glasgow, was named trustee.

In November 1834, a petition was presented by the Thistle Bank, and others, holding bonds, preferably secured over Westthorn, to the amount of £20,000, who stated that there was a whole year's arrear of interest due on £16,000 of the debt, and a half year's interest due on the remaining £4000: That they were impeded in selling the lands, in consequence of a postponed heritable creditor for £8500 refusing to concur: That M'Clelland, the trustee, declined to interfere with the heritage, as it could not be made available to the personal creditors: And that it was thus left under the management of the bankrupt, subject only to occasional control by the heritable creditors. They prayed for sequestration of the lands, and the appointment of a judicial factor.

Andrew Steven, merchant near Glasgow, a postponed heritable creditor to the amount of £13,738, and who stated that he had the concurrence of another postponed creditor to the amount of £8500, opposed the petition. He pleaded, 1. That the lands fell within the sequestration already awarded under the bankrupt act, and could not be made the subject of a fresh sequestration while the first subsisted; and, 2. That if the lands could be held as not falling under the first sequestration, there were no termini habiles for sequestrating them at all, because there would then be no process of competition before the Court, with reference to which sequestration could be craved, and the mere fact, that lands were burdened beyond their value, was no ground whatever for sequestrating.

The lands contained valuable coal, and it was alleged, at the advising, that the bankrupt was working this without any adequate check.

The Court granted sequestration as craved, and their Lordships observed, that they could not compel the trustee, under the bankrupt act, to make up titles to the lands, or to manage them for behoof of the heritable creditors; and that the respondent appeared to have no interest to oppose the prayer of the petition.