Scottish Court of Session Decisions

This petition was presented by Mr John Christie Foulds, accountant, under the following circumstances:—

On 20th April 1855 the estates of James Cormie were sequestrated by the Lord Ordinary on the Bills, under the Act 2 and 3 Vict. c. 41; and on May 7, 1855, the petitioner was elected trustee on the estates, and was thereafter duly confirmed. The petitioner's intromissions under the sequestration were of trifling amount, the assets of the estate being so small as not to cover the expenses of the sequestration, much less to pay a dividend to the creditors. Shortly after the sequestration, the bankrupt left Scotland, and nothing was heard of him till last year, when it was learned that he had returned to this country, and was endeavouring to carry through a sale of a small property in Paisley to which he had succeeded through the death of his father, John Cormie, spirit-dealer in Anderston of Glasgow. The petitioner thereupon made the necessary application to the Lord Ordinary on the Bills, and, on November 1, 1871, obtained deliverance and warrant of his Lordship declaring the subjects in Paisley, as described in the application, to be vested in the petitioner, as trustee foresaid, at the date of the succession thereto, all in terms of the said Act. Then the petitioner convened a meeting of creditors, who elected commissioners in place of two of the original commissioners, who had died. Afterwards the petitioner sold the subjects, and thus obtained a sum of from £200 to £300 for division. But the difficulty arose that the Sederunt Book, claims of creditors, and whole other documents in the sequestration were lost, and could not be found. The petitioner had thus no list of the creditors who lodged claims, nor any means of getting such a list, and consequently he could not declare or pay a dividend, or otherwise proceed with the sequestration.

In these circumstances the trustee presented this petition, the prayer of which was as follows:—May it therefore please your Lordships, after such intimation or service hereof (if any) as to your Lordships may seem necessary, to grant to the petitioner authority to proceed in the sequestration, and to take all necessary steps therein for the division of the funds, and otherwise, notwithstanding the loss of the Sederunt Book, claims, and other documents, and the petitioner's consequent inability to use or produce the same in terms and for the purposes of the statute; and to authorise the petitioner to insert a notice in the Edinburgh Gazette, North British Advertiser, and Glasgow Herald newspapers, addressed to the creditors on the estate, setting forth the date of the sequestration and the loss of the claims lodged by creditors, and requiring creditors, and representatives of creditors deceased, to lodge claims in the statutory form within the period of one month from the last date of notice, under certification that the assets of the estate shall be divided among such creditors, or representatives of creditors, only as shall lodge claims within the said period; the claims so lodged being always disposed of in accordance with the provisions of the said Act, and the further procedure in the sequestration, with a view to the

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division of the funds and otherwise, being regulated thereby; and so far as this application may not be disposed of by your Lordships prior to the rising of the Court for the autumn vacation, to remit the same to Lord Ordinary on the Bills during the vacation, or to the Sheriff of Lanarkshire, with full powers.”

R. V. Campbell for the petitioner.