Scottish Court of Session Decisions

William Fletcher, Ottershaw, Chertsey, a creditor to the extent of £58, 17s. 6d. of James Anderson, nurseryman, Uddingstone, near Glasgow, on 9th February 1883 presented a petition to the Sheriff of Lanarkshire at Hamilton praying for sequestration of the estates of James Anderson. On the same date the usual deliverance on such a petition was pronounced by the Sheriff-Substitute granting warrant to cite the debtor; a caveat was also lodged in the Sheriff Court at Hamilton by the petitioner craving to be heard should any application for sequestration be made by the debtor. The petition and deliverance were served on the debtor on 10th February, and on the same date the petitioner lodged a caveat in the Bill Chamber craving to be heard in the event of any application being made for the sequestration of Anderson's estate. On 16th February Anderson presented an application in the Bill Chamber for sequestration of his estates, with the concurrence of Messrs T. S. Cunningham and Turner, stockbrokers, Glasgow, creditors to the extent required by law, and the usual deliverance was pronounced awarding sequestration, and the sequestration was remitted to the Sheriff of Lanarkshire at Hamilton, and a meeting of the creditors appointed to be held there on 3d March.

This petition was presented on 24th February by Fletcher for the recal of the sequestration, on the ground that the second petition was incompetent, in respect that at the date of its presentation there was a pending process of sequestration which still remained undisposed of. The petitioner submitted that if the second sequestration were to stand, the date of sequestration would be altered, and in consequence preference might be acquired. He did not aver that any preference had been acquired.

Answers were lodged for Anderson and for Cunningham and Turner on 8th March, in which it was stated that the meeting appointed had taken place on 3d March, when a state of the affairs was produced, showing the total liabilities to be £3233, 8s. lid., that at the meeting it had been unanimously resolved by the creditors represented at the meeting, whose debts amounted to £2420 17s. 4d., that the estate ought to be wound up under a deed of arrangement, and that an application should be presented to sist procedure for two months, in terms of sec. 53 of the Bankruptcy (Scotland) Act 1856, that no appearance was made at the meeting for the petitioner, that the resolution had been duly reported, and the sequestration sisted for two months. Further, the respondents averred that there was no question as to preferences, but only as to expenses.

The Lord Ordinary on the Bills (Kinnear) refused the petition.

“ Note.—The application for sequestration in the Bill Chamber seems to have been unnecessary, and had nothing been done in the sequestration which has been awarded, it might have been reasonable that it should be recalled in order that the process for sequestration in the Sheriff Court might proceed; but the sequestration was competently awarded on the 16th of February, and after publication of the usual notices in the Gazette the creditors have met and resolved upon a particular mode of winding up the estate. In these circumstances a recal of the sequestration would occasion inconvenience to which creditors ought not to be exposed without good reason. If there were reasonable ground

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for apprehending that preferences had been obtained between the date of the first deliverance in the Sheriff Court and the deliverance in the Bill Chamber, that might have been a sufficient reason for the recal. But it was admitted that the petitioner is not in a position to say that such ground exists. The proper course seems to be that taken in Tennent v. Martin, March 6, 1879, 6 R. 786.”

The petitioner reclaimed, and argued that this case was ruled by the cases of Jarvie v. Robertson, November 25,1865, 4 Macph. 79; and Kellock v. Anderson, &c., December 14, 1875, 3 R. 239, and not by those of Tennent v. Martin & Dunlop, March 6, 1879, 6 R. 786; and Simpson v. Myles, November 8, 1881, 9 R. 104.

At advising—