Scottish Court of Session Decisions

By the Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), sec. 3, it is, inter alia, enacted that all proceedings occurring on or after the date of the Act coming into operation in sequestrations which have been awarded before it under former Acts, “shall, if and as soon as an interlocutor to that effect pronounced by the Lord Ordinary shall become final, or if and so soon as an interlocutor to that effect shall be pronounced by the Court, be regulated by this Act.”

The estates of Robert Murray, Tain, were sequestrated in 1808 under the Act 33 Geo. III. cap. 74, and Alexander Stronach was appointed trustee. The estate was distributed, and certain dividends paid, and in 1826 there remained in bank £230 to meet contingencies and a balance due to the trustee. That sum was thereafter allowed to remain in bank, and apparently neither the bankrupt nor the trustee were ever discharged. The bankrupt, the trustee, and the commissioners being all dead, the representative of one of the commissioners, with concurrence of the trustee's testamentary trustees, presented a petition for revival of the sequestration in order to have the balance of the estate, now amounting to £1362, 10s., distributed.

The petitioners stated that they were in doubt whether in the circumstances the provisions of section 74 of the Bankruptcy Act relative to the election of new trustees in sequestrations were applicable to the present case. If that procedure were to be followed it would be necessary for the new trustee when elected to convene a second meeting of creditors to elect commissioners in terms of section 75 of the statute. The petitioners suggested that it would be a more convenient course were the Court, in exercise of its nobile officium, to remit to the Lord Ordinary officiating on the Bills, or to the Sheriff of Inverness, Elgin, and Nairn, at Elgin, to appoint a meeting of creditors to be held in Elgin for the purpose of electing simultaneously a new trustee and new commissioners.

Authorities— Thomson, December 17, 1863, 2 Macph. 325; Gentles, November 22, 1870, 9 Macph. 176.

Evidence having been produced that the representatives of the bankrupt alive and in this country had been communicated with, and had resolved not to sist themselves hoc statu, the Court pronounced this interlocutor:—

“Order and direct that the future proceedings in the process of sequestration of the estates of the late Robert Murray, sometime corn-dealer at Hartfield, near Tain, shall, from and after this date, be regulated by the Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), and Acts explaining and amending the same: Further, remit to the Lord Ordinary officiating on the Bills to appoint a meeting of the creditors of the said Robert Murray, to be held at such time and place as his Lordship may fix, to elect

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a trustee or trustees in succession and commissioners on the said sequestrated estates, with the whole powers conferred by the said statutes, and to appoint said meeting to be advertised in the Edinburgh Gazette, and with power to remit to the Sheriff of the sheriffdom of Inverness, Elgin, and Nairn, at Elgin, to proceed further in said sequestration in manner mentioned in the statutes; and direct that the expense of this petition and of the proceedings to follow thereon shall form a first charge upon the funds of the estate.”