Scottish Court of Session Decisions

This petition, presented at the instance of Mrs Jessie Maclean and others, the testamentary trustees of the late John Meiklem Macleish, merchant in Glasgow, set forth the following facts:—On 13th August 1888 the Lord Ordinary on the Bills awarded sequestration of the estate of the said Mr Macleish, on the petition of the testamentary trustees of James Shearer, and that James Martin was appointed trustee on the sequestrated estate.

Part of the sequestrated estate consisted of a villa at Helensburgh burdened to almost its full value, which the trustees in vain attempted to sell for £150 more than the sum in the bond.

The trustee having realised the rest of the bankrupt estate, “entered into an arrangement or compromise with the bankrupt's testamentary trustees and widow, by which they in 1889 paid the sum of £200 in full of all claims against the trustees and the heirs and representatives of the bankrupt. The said sum represented the full value of the reversion of the said Balfunning Villa, and it was part of the arrangement, as set forth in the receipt and discharge for the said £200, dated 31st January 1889, that the trustee should concur in any petition that might be presented by the bankrupt's testamentary trustees (the present petitioners) for the recal of the sequestion.”

In September 1889 the trustee was duly discharged.

“The petitioners the said John Meiklem Macleish's trustees have sold the said villa at Helensburgh, and require, in order to give a good title to the purchaser, to clear the record, which can be done by having the sequestration recalled or declared to be at an end.”

The present application was presented with consent of the judicial factor, who had been appointed on James Shearer's estate.

The petitioners accordingly craved the Court, after advertisement and service, “to pronounce judgment recalling the sequestration of the estates of the said John Meiklem Macleish, or otherwise to declare the said sequestration at an end, and the petitioner reinvested in the said villa of Balfunning, Helensburgh, described in the titles thereof as follows,” &c.

Argued for the petitioners—Section 32 of the Bankruptcy Act 1856 (19 and 20 Vict. cap. 89) provided that recal of a sequestration should be granted on a petition of nine-tenths of the creditors. The present application was in keeping with the whole spirit, if not the exact letter, of that section. The peculiarity of the case was that the whole sequestration had been carried through and the trustee discharged. Nevertheless, without the interposition of the Court, the testamentary trustees of the bankrupt would not be in a position to give a good title to, the property which they were selling— Anderson, March 13, 1866, 4 Macph. 577, referred to.