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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ireland [1834] CA 13_223b (20 December 1834)
URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0223b.html
Cite as: [1834] CA 13_223b
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SCOTTISH_Shaw_Court_of_Session
Page: 223↓
Subject_Bankruptcy.—
Where it was alleged that all the creditors assented to an offer of composition under a sequestration, and no party appeared to oppose the petition for approval, the Court granted the prayer, periculo petentis, though no meeting of creditors had been called to consider of the offer.
The estates of George Ireland, house-builder in Edinburgh, were sequestrated in 1828, and James Borthwick, accountant in Edinburgh, was appointed trustee. In 1834, Ireland presented a petition, with concurrence of Borthwick, stating that he had regularly undergone the diets of examination, and “that after sundry procedure in the said sequestration, the petitioner, of this date, made offer to his creditors of a composition of sixpence sterling per pound on the whole debts and obligations due, owing, and contracted by him at or prior to the said date of the sequestration of his estate and effects, payable at six months from the said date of said offer. The petitioner also thereby offered to find security for the said composition, and to pay and find security for the trustee's commission, and all the expenses attending the sequestration, and the recal thereof.
“A bond of caution for the said composition, commission, and expenses, and a report, statement, and certificate by the trustee relative to the said offer, are all herewith produced.
“By the trustee's report it is instructed that the whole of the creditors who have lodged claims on the sequestrated estate have accepted of the said offer, and that the bankrupt has in all respects conformed to the requisites of the act.
“In these circumstances, the petitioners, in terms of the statute above mentioned, make the present application.”
Ireland prayed the Court to approve of the composition, and declare the sequestration at an end in common form. There was a certificate appended by the trustee, purporting that five creditors had claimed on the estate, to an amount of £1086, 15s. 10d.; that the whole of them had agreed to accept of the composition; that a bond of caution had been tendered; and that Ireland had complied with the requisites of the bankrupt act.
After the usual intimation, when the petition was moved, the
Pyper for Petitioner.—It is only when a composition contract proceeds under section 59 of the bankrupt act, that it is necessary to call a first and second meeting, to dispose of the offer of composition, and with the requisite advertisement. When that mode is not followed, it is competent, under section 61 of the statute, where all the creditors assent to the composition, to apply to the Court for approval of the composition, without previous meetings being held, by advertisement, or otherwise. This is so laid down by 2 Bell, 467, section 5, who says—“It is not necessary to have a meeting called to authorize a composition, which is to be assented to by alt the creditors; a meeting is necessary only where the majority are to control the minority.”
The other Judges assented, and the petition was granted accordingly.
Solicitors: A. Boyd, W.S.—Agent.