Scottish Court of Session Decisions

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Cite as: [1873] SLR 11_115, [1873] ScotLR 11_115

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SCOTTISH_SLR_Court_of_Session

Page: 115↓

Court of Session Inner House Second Division.

Saturday, December 6. 1873.

[Sheriff of Midlothian.

11 SLR 115

Appeal—Partridge.

Subject_1Bankruptcy (Scotland) Act, 1856, sec. 16.

Facts:

Held that section 16 of the Bankrupt Scotland Act recognised the competency of granting a petition for the appointment of a judicial factor on an estate after sequestration, but before the appointment of a trustee.

Headnote:

This was an appeal from the deliverance of the Sheriff of Midlothian on a petition presented to him by Frederick John Partridge, of the firm of Matthew, Wright, & Partridge, London, and his mandatory, with consent and concurrence of Peter Cunningham, Stockbroker, Edinburgh. The petition
Page: 116↓
set forth that the estates of James Kirk, grocer, Edinburgh, were sequestrated on 29th November 1873, but that a trustee could not be appointed under the sequestration before the 10th of December; that there was great danger that the estate should he delapidated and dissipated before a trustee could be appointed, and that the petitioners, as creditors on the estate, and in virtue of sections 16 and 20 of the Bankruptcy (Scotland) Act, 1856, craved the Court to appoint a judicial factor to take charge of the estate.

The Sheriff-Substitute ( Hallard) pronounced the following interlocutor:—

“ Edinburgh, 2d December 1873—The Sheriff-Substitute having heard the petitioners' solicitor; Finds that the statute does not authorise the appointment of a judicial factor after sequestration; Therefore refuses the desire of this petition, and decerns.

Note—The present application is founded upon sections 16 and 20 of the statute. Of these two provisions the latter merely empowers the Sheriff in general terms ‘to take such measures in the meantime as may be necessary for preserving the debtor's estate and effects within his jurisdiction, under the provisions of this Act.’ The power, to appoint a judicial factor is to be found only in section 16.

It cannot be said that the terms of this section are free from douht. Appointment of a judicial factor may be prayed for in the petition for sequestration itself, where the applicant is a creditor. It may be prayed for in a separate petition. But the introductory words of the section seem to imply that the time at which such an appointment is competent can only be found in the interval, longer or shorter, as the case may be, between presentation of the petition for sequestration and the award of sequestration. It is competent to appoint a judicial factor ‘whether sequestration can forthwith be awarded or not’ before sequestration. There is certainly no express power given to make such an appointment after sequestration.

Protection of the estate after sequestration, and before the election of a trustee, is expressly provided for by section 17th.”

The petitioner appealed to the Court of Session under section 170 of the Bankruptcy Act. Nicol Bailie & Co., as creditors in the estate, appeared and supported the interlocutor of the Sheriff-Substitute, and maintained that as no affidavit or vouchers had been lodged with the petition, it was incompetent.

At advising:—

Judgment:

Lord Justice-Clerk—I think the 16th section of the statute gives no countenance to the view that the Court are excluded from making provision for interim management of an estate after sequestration, but before the appointment of a trustee. The office of interim factor was abolished, which would not have been done unless the Legislature had provided for interim management in such a case. There is no limit in point of time in section 16. Only two alternatives are mentioned, and in either a petition such as this is competent. With regard to an affidavit, it must be lodged.

Lord Cowan—I concur with your Lordship that the 16th section recognises the competency of the Court granting such a petition as this, and such an appointment may be especially necessary after sequestration, but before a trustee is appointed. The affidavit ought to have been produced as the proper evidence of the petitioner being a creditor.

Lord Benholme and Lord Neaves concurred.

The Court reversed the interlocutor of the Sheriff and granted the prayer.

Counsel:

Counsel for Appellant— Crichton. Agents— Pearson & Robertson, W.S.

Counsel for Objectors— Robertson. Agent— D Hunter, S S.C.
1873