Subject_1Bankrupt—Bankruptcy Act 1856, sect. 142—Count and Reckoning—Petition.
Facts:
An action of count and reckoning by a discharged bankrupt against his trustee, also discharged,
held incompetent, the bankrupt's remedy in such case being by petition under section 142.
Headnote:
Burns, a bankrupt discharged on composition, brought an action of count and reckoning against Craig, trustee in his sequestration, now also discharged. The defender pleaded that the action was incompetent, in respect that the Bankrupt Act 1856, section 142, provides that the proper method in such cases is by petition to the Lord Ordinary or the Sheriff.
The Sheriff-substitute (A. E. Murray) sustained the plea, and dismissed the action.
The Sheriff (Bell) adhered.
The pursuer appealed.
Scott for appellant.
Watson and Brand for respondent.
At advising—
Judgment:
Lord President—I think the Sheriffs are right. The sequestration of the pursuer's estates had come to an end, the trustee had been discharged, and, as I understand, the bankrupt himself had been discharged on a composition. In these circumstances, before the trustee can obtain his discharge, there must have been the proceedings provided in the bankruptcy Act. But all this is to be subject to the review of the Lord Ordinary or the Sheriff, if complained of by the trustee, the bankrupt, or any of the creditors. Now. the question as to the sufficiency of the trustee's accounts, as to any balance due to or by him, and as to the remuneration for his services, are all made matter of adjudication by the commissioners in the first instance, and by the Lord Ordinary or the Sheriff in the second place, and the bankrupt is a necessary party to these proceedings. After all that the trustee obtains his discharge. That discharge is a deliverance by the Lord Ordinary or the Sheriff which exoners and discharges him of his whole intromissions as trustee in the sequestration—trustee, not only for the creditor, but also for the bankrupt. If it were not for the somewhat singular provision at the end of the 142d section, there is no doubt that there could be no action by the bankrupt against the trustee to call him to account for his intromissions, of which he is formally discharged. It must be observed that, in the case of a balance being in the hands of the trustee after satisfying the creditors, or after providing for all he was bound to provide for, the trustee will not get his discharge until he has paid over any such balance to the parties to whom it belongs. That was found so long ago as in 1810, in the case of
Ballantine. Therefore it is clear that, if it were not for this provision in the 142d section, the bankrupt would have had no opportunity of calling the bankrupt to account for his actings as trustee. But this section certainly does nevertheless give the bankrupt a right to present a petition to the Lord Ordinary or the Sheriff against the trustee and his cautioners, to account for his intromissions as trustee. It is a remarkable remedy, and one that must be strictly followed, and as the statute says it is to be by the form of a petition, I do not think we can allow it in any other form.
