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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ballantyne Petitioner [1900] ScotLR 37_798 (21 June 1900)
URL: http://www.bailii.org/scot/cases/ScotCS/1900/37SLR0798.html
Cite as: [1900] ScotLR 37_798, [1900] SLR 37_798
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SCOTTISH_SLR_Court_of_Session
Page: 798↓
Court of Session Inner House First Division.
Facts:
The estates of a bankrupt were sequestrated in 1896 on a petition presented by himself, with consent of his son, who was a creditor. An abbreviate of the deliverance awarding sequestration was recorded, but no further procedure was taken. The bankrupt died in 1897, and in 1900 a petition was presented to the Court by his son, with consent and concurrence of the only other known creditor on the estate, in which the petitioner averred that he and the concurring creditor had agreed to the division of
Page: 799↓
the estate without incurring the expenses of bankruptcy administration, and craved the Court to declare the sequestration at an end, and to declare the petitioner entitled to complete his title as heir-at-law to the heritable estate of his father, and to grant warrant for recording the deliverance so to be pronounced in the Register of Sequestrations and in the Register of Inhibitions. The Court appointed a meeting of creditors for the election of a trustee on the estate, and thereafter, no creditor having attended the meeting, granted the prayer of the petition.
Anderson, March 13, 1864, 4 Macph. 577, followed.
On 7th March 1896 the estates of William Ballantyne were sequestrated by the Sheriff of Lanarkshire on a petition presented by himself with consent of James Ballantyne, his son, who was a creditor of the said William Ballantyne to the extent required by the statute. An abbreviate of the deliverance was recorded in the General Register of Inhibitions on 9th March 1896. The sequestration was not advertised in the Gazette, and no further procedure was taken in the sequestration.
William Ballantyne died intestate on 20th September 1897. His heir-at-law was his son James Ballantyne, and John Logan, a creditor, was decerned executor-dative qua creditor.
On June 6th 1900 a petition was presented by James Ballantyne, with the consent and concurrence of John Logan, in which the petitioner craved the Court to declare the sequestration of William Ballantyne at an end, and for all obstacles which it otherwise might have offered, to declare the petitioner entitled to complete his title as heir-at-law to the heritable estate of his father,
The petitioner, after narrating the facts set out above, averred—“That the petitioner James Ballantyne and the said John Logan are, so far as known, the only creditors of the said William Ballantyne, and have agreed as to the division of the deceased's estates without incurring the expense of bankruptcy administration. The said estates, so far as known to the petitioner and the said John Logan, consist of the deceased William Ballantyne's share or interest in certain leasehold subjects in Biggar, and certain funds which were paid to the petitioner James Ballantyne before his father's death.”
The Court on June 7th 1900 pronounced an interlocutor whereby before answer as to the competency of the petition otherwise, they ordered intimation in common form, and appointed the deliverance pronounced by the Sheriff of Lanarkshire on March 7th 1896, and the present deliverance of the Court, to be advertised in the Edinburgh and London Gazettes of 12th June 1900, and appointed a meeting of the creditors of William Ballantyne to be held for the election of a trustee on his estates.
No creditor attended the meeting, and a certified minute to that effect under the hand of the petitioner's agent was lodged in process. The petitioner founded on the case of Anderson, March 13, 1864, 4 Macph. 577.
The Court pronounced this interlocutor:—
“The Lords having resumed consideration of the petition, with copies of the Edinburgh and London Gazettes, of date 12th June 1900, and the certified minute, and heard counsel for the petitioner, and in respect of the decision of the Court in the case of Peter Anderson, petitioner, 13th March 1866, reported in 4 Macph. p. 577: Declare the sequestration of the estates of the deceased William Ballantyne, mentioned in the petition, awarded by the Sheriff of Lanarkshire on 7th March 1896, at an end, and for all obstacles which it otherwise might have offered, declare the petitioner now entitled to complete his title as heir-at-law of the said deceased William Ballantyne omni habili modo to the heritable estate of the said deceased William Ballantyne, and grant warrant for recording this deliverance in the Register of Sequestrations and in the Register of Inhibitions, and decern.”
Counsel for Petitioner— Guy. Agent— George A. Munro, S.S.C.