Scottish Court of Session Decisions

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Cite as: [1869] ScotLR 6_539, [1869] SLR 6_539

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SCOTTISH_SLR_Court_of_Session

Page: 539↓

Court of Session First Division.

Saturday, May 29 1869.

Lord President

6 SLR 539

Scott and Gilmour

v.

Wink.

Subject_1Bankrupt
Subject_4Discharge—Timeous Objection.
Facts:

A creditor who, although aware of his debtor's sequestration, lodged no claim, held precluded from reclaiming against a deliverance of the Sheriff approving of an offer of composition, he having stated no objection to the proceedings until the time for reclaiming against the deliverance had almost expired, and the proceedings in the sequestration being regular.

Headnote:

Buchanan's estates were sequestrated on 21st August 1866. Wink was appointed trustee at a meeting of creditors on 15th February 1869, called by the trustee, with consent of the commissioner, to consider an offer of composition with security. The bankrupt offered a composition of ninepence per pound. The minute bore that the “creditors unanimously resolved that the above offer be entertained for consideration, and instructed the trustee to call another meeting of the creditors, for the purpose of finally deciding on the bankrupt's offer, and the security proposed.” A circular letter, dated 1st March 1869, was sent to all the creditors who had lodged claims, or who were given up in the bankrupt's state of affairs, intimating the offer, and calling a meeting to decide on the same. To this letter was appended this note:—“The bankrupt states that he has certain claims against Mr Merry, which have emerged since the sequestration, out of his dealings with the Caol Ila Distillery, and otherwise; the trustee, with advice of the commissioners, has refused to take up and pursue said claim.”

At the meeting on 11th March, the offer and security made at last meeting having been considered, it was unanimously agreed to accept thereof, and the trustee was instructed to get the same carried through without delay.

On 22d March the trustee reported to the Sheriff, in terms of the 38th section of the Bankruptcy (Scotland) Act 1856. On 30th March the Sheriff-substitute (Murray) pronounced this interlocutor:—“Having considered the foregoing report, with the minutes of meeting of creditors and bond of caution therein referred to, and no appearance being made by any creditor to object, finds that the offer of composition, with the security therein mentioned, has been duly made, and is reasonable, and has been accepted unanimously by the creditors, or mandatories of creditors, present at said meeting; therefore approves of the said offer, with the security; but before granting the discharge, appoints the bankrupt, Norman Buchanan, to appear and make a declaration in terms of the statute.”

Scott & Gilmour, coalmasters, Glasgow, creditors to the extent of £7, who. although they were aware of the sequestration, had not lodged any claim, appealed.

The Lord Ordinary (Benholme) dismissed the appeal.

Shand and Gloag for reclaimers.

Fraser and H. J. Moncreiff for respondent.

At advising—

Judgment:

Lord President—We have heard a great deal about general principle in this case, but I have failed to extract any general principle from what we have heard. This offer has been carried through regularly under the statute. It is unobjectionable in point of form. The meeting at which it was entertained was a regular meeting of creditors, and the meeting at which it was accepted was also a regular meeting. The circular letter sent in the interval complied with all the requirements of the statute. Mr Gloag says that it does not give sufficient information. That is a question of circumstances, and it is difficult for us to judge of that now, owing to the fault of the appellant, but on the face of the letter it does give information, assuming the trustee to be honest and to be stating the truth. I think it gives proper information for the creditors, to enable them to say whether the offer is reasonable, and ought to be accepted. It also states that, while some other claims have emerged since the sequestration, the trustee, with advice of the commissioners, has refused to take them up. Mr Gloag says that that is another thing for consideration, and it is desirable to know something as to these claims which emerged, and the reason of the sum being reduced to ninepence per pound. That is a good observation, but when ought it to have been stated? Ought it not to have been made at this meeting for consideration of the offer? But these gentlemen, for a claim of £7 for coals, make no appearance in this sequestration, and lodge no claim down to the present date. They might have appeared at the meeting for consideration of the offer, and might have stated this objection and asked information, which I think they would have got on the spot, and such as would have satisfied them. They allow things to go on, and then the trustee makes this representation to the Sheriff, and he, in his absence of any objection from any quarter, pronounces the deliverance of 30th March. All this time, and for seven days more, this account was never heard of, but on the last day for reclaiming against this deliverance this application is presented, and what is said in support of it? Nothing but the vaguest surmises of something being wrong. It is said the composition is not reasonable, or rather that we cannot see

Page: 540↓

whether it is reasonable or not. I admit that, but it is the fault of the appellants themselves. I can hardly conceive any state of circumstances calling for less consideration from this Court; and, without saying anything as to the competency, I am of opinion, on the merits, that the application is utterly unfounded.

The other Judges concurred.

Counsel:

Agent for Appellants— W. Ellis, W.S.

Agents for Respondent— Murray, Beith & Murray, W.S.
1869