Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0197.html
Cite as: [1866] SLR 2_197, [1866] ScotLR 2_197

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SCOTTISH_SLR_Court_of_Session

Page: 197↓

Court of Session Inner House First Division.

2 SLR 197

Moses and Another

v.

Gifford.

Subject_1Bankruptcy
Subject_2Recal of Sequestration
Subject_323 and 24 Vict. c. 33, sec. 2.
Facts:

A sequestration recalled in respect (1) the bankrupt was an Englishman and his creditors chiefly English; and (2) he had applied for sequestration under a designation calculated to mislead his English creditors.

Headnote:

The respondent John George Gifford, who is, or was in 1864, a clerk in holy orders, and curate of the chapelry of Holdenhurst, in England, had his estates sequestrated by the Lord Ordinary on 6th May 1864. The application for sequestration was made in name of “John George Gifford, clerk, residing at Innerleithen, in the county of Peebles,” and the concurring creditor was John James Wynter Gifford, of Hertingfordbury, in the county of Hertford, the bankrupt's son, who was represented as a creditor to the amount required by law. In July 1864 the petitioners, two creditors of the respondent, presented an application for recal of the sequestration. The application for recal was founded on section 2 of the Act 23 and 24 Vict. c. 33, which provides that, “if in any case where sequestration has been or shall be awarded in Scotland, it shall appear to the Court of Session, or to the Lord Ordinary, upon a summary petition by the accountant in bankruptcy, or any creditor, or other person having interest, presented to either Division of the said Court, or to the Lord Ordinary, at any time within three months after the date of the sequestration, that a majority of the creditors in number and value reside in England or in Ireland, and that, from the situation of the property of the bankrupt or other causes, his estate and effects ought to be distributed among the creditors, under the bankrupt or insolvent laws of England or Ireland, the said Court, in either Division thereof, or the Lord Ordinary, after such inquiry as to them shall seem fit, may recal the sequestration.”

It was averred that the bankrupt's permanent domicile was in England, and that his whole estate and effects were situated there; and he had admitted in his examination under the sequestration, which was taken in London on commission on 30th June 1864, that he had upwards of twenty creditors resident in England, whose united debts amounted to upwards of £2590; that he had only two Scotch creditors, whose debts amounted to £10, 15s.; and that he had five French creditors, whose united debts amounted to £236. No procedure took place under this application for a long time, but on 31st May last Lord Mure appointed intimation to be made to the respondent personally, his agent having ceased to act for him, and in respect of non-appearance, his Lordship on 19th June last recalled the sequestration.

The bankrupt reclaimed.

Judgment:

Scott, for him, argued that the Lord Ordinary was not entitled to proceed to recal the sequestration merely because of no appearance. The letter intimating the interlocutor of 31st May last had not been received.

The Lord President said that that might be a ground for reponing the bankrupt on conditions, and counsel were asked to speak to the merits of the application.

Scott argued — When the sequestration was awarded the bankrupt was resident in Scotland. It was not sufficient ground for recalling it that a majority of the creditors were resident in England. The clause of the statute relied on required something more, and there was no other ground suggested here.

F. W. Clark was heard in support of the application for recal. The sequestration was a mere device to obtain protection from the diligence of the English creditors, who were misled by the deceptive character of the designation assumed by the bankrupt, and under which his estates were sequestrated.

The Lord President—We have now heard the merits of this case. I think the Lord Ordinary was quite warranted in the circumstances in pronouncing the interlocutor reclaimed against. But we might, on conditions, have recalled that interlocutor if we thought it right after hearing the case to do so. I think, however, it is very clear, from the statement of the bankrupt himself, that he came to Scotland for the purpose of availing himself of the Scotch law of bankruptcy, not choosing to place himself under the bankruptcy

Page: 198↓

law of the country from which he came. He made his application for sequestration under a designation calculated to mislead his English creditors, and to conceal his identity from them. It appeared that his real designation was “John George Gifford, Clerk in Holy Orders,” and he designed himself “Clerk, residing at Innerleithen;” but I did not discover what sort of clerk he really was until after I had read well through the printed papers. It appeared also that almost all the creditors reside in England, and a mere fraction of them in Scotland. It is therefore clear that England is the proper country in which to distribute any estate this bankrupt has. It was said that there was none in England, but it is not said there is any in Scotland. What he has he probably carries about with him. It was said there was no jurisdiction under which the bankrupt's affairs could be wound up in England; but if he wishes his affairs wound up, he can have no difficulty in replacing himself under the jurisdiction from which he has escaped.

The other Judges concurred, and the reclaiming-note was refused.

Solicitors: Agent for Petitioners— J. Y. Pullar, S.S.C.

Agent for Bankrupt— D. F. Bridgeford, S.S.C.

1866