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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scott v. Roy [1884] ScotLR 22_147 (26 November 1884) URL: http://www.bailii.org/scot/cases/ScotCS/1884/22SLR0147.html Cite as: [1884] ScotLR 22_147, [1884] SLR 22_147 |
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Page: 147↓
Sheriff of the Lothians.
Held that an application by a trustee under section 149 of the Bankruptcy Act 1856 to have a portion of a pension enjoyed by the bankrupt taken by the trustee for the purpose of paying the bankrupt's debts must be intimated to the bankrupt.
In March 1884 the estates of James Gibson Scott were sequestrated under the Bankruptcy Act 185G, and W. G. Roy, S.S.C. was appointed trustee. At the time of his sequestration Scott was in receipt of a pension of £46 a-year from the Post Office.
The Bankruptcy Act 1856, section 149, enacts that “the … Sheriff may order such portion of the … pension of any bankrupt as on communication from the … Sheriff to … the chief officers of the department to which such bankrupt may belong, or have belonged, … they respectively may … consent to in writing, to be paid to the trustee in order that the same may be employed in payment of the debts of such bankrupt.” …
On 7th May 1884 Mr Boy presented a petition in the Sheriff Court at Edinburgh, reciting the 149th section of the Bankruptcy Act and praying the Sheriff to recommend the Postmaster-General to consent to the half or some other proportion of Scott's pension being paid to him as trustee, and on receiving such consent to order such portion to be paid as aforesaid. The petition was not served on the defender, nor was any intimation made to him of the intended procedure under it.
On 8th May the Sheriff-Substitute ( Hamilton) issued an interlocutor recommending to the Post master-General to make payment of one-half of the pension as craved
On 2nd June the Surveyor-General of the Post Office wrote to Messrs Richardson & Johnston, W.S., the agents in the sequestration, stating
Page: 148↓
that the Postmaster-General would not consent to a deduction from Scott's pension to be paid to his trustee of more than £10 a-year. On 9th June the Sheriff-Substitute ordered the £10 a-year to be paid to the trustee.
Scott appealed to the Court of Session, and appeared in person in support of his appeal He argued that there having been no service or intimation the procedure was incompetent, and the Sheriff's interlocutors should be recalled.
Replied for the trustee—Neither service nor other intimation was prescribed by the Bankruptcy Act under which the proceedings were taken, and they were quite regular.
At advising—
The Court recalled the Sheriff-Substitute's interlocutors and dismissed the petition.
Counsel for Trustee— Nevay. Agents— Richardson & Johnston, W. S.
