Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stewart v. Foulds [1866] ScotLR 3_18 (14 November 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/03SLR0018.html
Cite as: [1866] SLR 3_18, [1866] ScotLR 3_18
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 18↓
Court of Session Inner House First Division.
v.
Facts:
Is a person who only alleges an interest in an estate entitled to present a petition under section 104 of the Bankruptcy Act?
By section 104 of the Bankruptcy (Scotland) Act, 1856, it is provided that “Any person claiming right to any estate included in the sequestration may present a petition to the Lord Ordinary praying to have such estate taken out of the sequestration, and the Lord Ordinary shall order the trustee to answer within a certain time, and on expiration of such time he shall proceed to dispose of the application.”
The estates of A. W. Crichton, writer in Glasgow, were sequestrated on 5th February 1861, and the respondent John Christie Foulds was appointed trustee. As such he received payment of a sum of £900, the contents of a policy of insurance, on Mr Crichton's life. The petitioner alleged in regard to this policy that it was effected under an arrangement for the purpose of securing payment of certain accounts due by a person named Guthrie to the firm of Reddie and Crichton, of which Crichton was a partner, and that it was really held by Crichton for behoof of Guthrie. The petitioner also averred that he was a creditor of Reddie and Crichton, and in this way he maintained that he had an interest in having the amount of the policy taken out of Mr Crichton's estate. There were other two sums of £l50 and £102, said to be in a somewhat similar situation. He prayed the Lord Ordinary to ordain the three “sums to be taken out of the sequestration of Alexander William Crichton's estate as not forming a portion of the said sequestrated estate, but belonging to Guthrie, and held for behoof of his creditors, Reddie and Crichton, and for the said Reddie and Crichton's creditors,
Page: 19↓
of whom the petitioner is one to the aforesaid extent.” The trustee lodged answers, in which he pleaded, inter alia—1. The petitioner has no right or title to raise or insist in the present application, in respect that he does not claim right to the funds therein specified in the sense of the 104th section of the Bankruptcy (Scotland) Act, 1856. 2. The petition should be dismissed, in respect that it is incompetent as laid, or at all events, in respect that the petitioner has not set forth facts and circumstances sufficient or relevant to support the prayer thereof.
The Lord Ordinary (
“ Note.—Had this been an application at the instance of Reddie and Crichton to take the £900, £150, and £102 in question out of the sequestration, upon the ground that they were in right to these sums as creditors of Guthrie, and that they belonged to them and not to the bankrupt, there could, it is thought, have been little doubt as to the title of Reddie and Crichton as creditors of Guthrie to make that claim. And although the position of the petitioners is attended with more difficulty, inasmuch as he claims as a creditor holding a decree against Reddie and Crichton, and as thus having right through them; still, having regard to the very broad terms of the provision in section 104 of the statute, which makes it competent for ‘any person claiming right to any estate included in a sequestration’ to avail himself of its provisions, the Lord Ordinary does not consider he would be warranted in holding that the petitioner was not in titulo to insist in this application upon the facts on which it is rested being established.”
The trustee reclaimed.
Glfford, for him, argued—The petitioner does not aver a right to the estate in question, but only a remote interest in it. He is, therefore, not in titulo to make this statutory application.
Thoms, for the petitioner, was not called on.
The Court adhered. They thought that the facts should be ascertained. The pleas were only repelled in so far as preliminary.
Expenses reserved.
Solicitors: Agent for Petitioner— William Officer, S.S.C.
Agents for Respondent— Graham & Johnston, W.S.