Legal Subject: Bankruptcy

Case Date Legal Subject Abstract
Francis Garbet and Company v. Their Creditors 1772 Bankruptcy, Sequestration Francis Garbet, Charles Gascoigne, and Peter Capper entered into a partnership under the name Francis Garbet and Company. The partnership was in the business of conveying goods to and from London and other places along the coast of England. Due to financial difficulty, Gascoigne applied to the court to sequester the whole personal estate belonging to the partners and to appoint a factor to manage the partnership's property so that timely payments could be made to the partnership's creditors. George Home was appointed factor on the sequestration. Gascoigne then sought to withdraw or amend the application by claiming that he was unaware of the effect of this sequestration under Scots law, having received his formal education and training in England. Under the law of Scotland, creditors of a company can claim not only the company's property, but the personal property of the individual partners as well. Under the law of England, in contrast, creditors of a company can only draw on the personal property of the individual partners after private creditors of the individual partners have been satisfied. The partners of Francis Garbet and Company sought to sequester the partnership's estate only, not the individual estates of the partners.
Gilbert Moses v. William Craig, Robert M'Lintock, and James Clark, Trustees for the Creditors of John M'Ewan 4 Feb 1773 Parole Evidence, Bankruptcy John McEwen (alternatively spelled McEwan), a flax-dresser in Glasgow, went into bankruptcy. Defenders William Craig, Robert McLintock, and James Clerk were named trustees for the creditors in McEwen's bankruptcy. Pursuer Gilbert Moses, a meal-merchant in Glasgow, was one of McEwen's creditors. The trustees entered into a concert of joint measures, signed by the creditors, for the payment of McEwen's debts to the creditors. In contravention of this concert among the creditors, however, Moses joined McEwen in an action of reduction to overturn the sale and division of McEwen's effects. Among other points, Moses maintained that he was not allowed to read the creditors' agreement prior to signing it. Moses also argued that a tenement of houses that he bought from McEwen prior to McEwen's bankruptcy and in partial satisfaction of McEwen's debt to Moses should remain as Moses' property, and not conveyed to the trustees in McEwen's bankruptcy. The trustees argued that, by acceding to the concert among creditors, Moses agreed to set aside any preferences he may have had to McEwen's debts, including the tenement of houses.
Jean Coalston, Pursuer v. Archibald Stewart, Merchant in Queensferry, Defender 3 Aug 1770 Bankruptcy, Debt The late George Stewart, merchant, who had filed for bankruptcy in London in 1749, owed money to Peter Coalston, the petitioner's brother, who had not participated in the bankruptcy arrangement. Later, Stewart started making money again and died, quite solvent, in 1758, with his bother Archibald as heir. Jean Coalston, as her brother's heir, sought to collect the debt. At the issue was the extraterritoriality of English law, in particular whether the laws of bankruptcy in England were applicable and valid in Scotland, as bankruptcy proceedings in Scotland were voluntary for creditors, whereas in England they were obligatory.
John Finlay and Trustees v. Robert Finlay and Trustees 1772 Debt, Copartnership, Bankruptcy John Finlay, pursuer, was the son of Robert Finlay, defender. John and Robert operated a shoe factory in Glasgow as a partnership. Robert owned two-thirds interest and John owned one-third. The partnership experienced financial difficulty and was placed in trusteeship. John's trustees sued Robert's trustees to see if Robert owed any money to John from the venture. Robert insisted that he did not owe any money and sought certain documents and books from the partnership.
Lunn v. Creditors of Lunn 1803 Bankruptcy, Debt, Liferent In May 1799, Walter Lunn, the Pursuer, was rendered bankrupt and subsequently sued for cessio bonorum. The Pursuer claimed that his insolvency was the result of innocent misfortune, while the Defender, his creditors, claimed that the Pursuer had engaged in fraud, thus disqualifying him from cessio bonorum. John Nixon, as Defender court-appointed trustee of Lunn's sequestered estate, opposed Lunn's claim to cessio bonorum after Nixon's review of Lunn's finances returned a much larger debt than Lunn had originally claimed. Nixon challenged the profits that Lunn claimed from a subject in Edinburgh liferented by his wife. Nixon argued that these rents were far less conseqential than Lunn claimed and that a competing claim on these rents by the family of Mrs. Lunn currently before the court would cause long delays in Walter Lunn's creditors receiving any of this money. Nixon also claimed that Lunn overstated the travel expenses he incurred while working as a traveling packman through the country of Roxburgshire.
MacDougall's Creditors v. MacDougall 31 Jan 1804 Bankruptcy, Estate, Creditor Mr. Allan Macdougall made advances to his son John to help him to get the position of lieutenant in the army. Two year after the disbursements, Mr. Macdougall became bankrupt and ceased the payments of his debts. Mr. Macdougall’s creditors brought an action against John Macdougall for repayment of the sum advances by his father. The Lord Ordinary found that the creditors were not entitled to claim the sums from John because their debts were separated from John estate.
Stein v. Marshall 24 Jan 1804 Proof, Bankruptcy, Defamation After he obtained a discharge from his creditors, the pursuer brought an action against James Marshall, alleging that he had defamed the pursuer’s character. The defendant sustained that the pursuer was fraudulently bankrupt and thus, he affirmed that the pursuer's creditors were defrauded. The pursuer's petition was refused, because he based his claim on a private conversation between the defendant and Robert Jaimeson, one of his creditors. The Court held that conversation was not relevant to prove the claim of the pursuer.
Stein v. Marshall 1804 Proof, Bankruptcy, Defamation After he obtained a discharge from his creditors, the pursuer brought an action against James Marshall, alleging that he had defamed the pursuer’s character. The defendant sustained that the pursuer was fraudulently bankrupt and thus, he affirmed that the pursuer's creditors were defrauded. The pursuer's petition was refused, because he based his claim on a private conversation between the defendant and Robert Jaimeson, one of his creditors. The Court held that conversation was not relevant to prove the claim of the pursuer. [This case appears twice in the SCOS database. See ID #4141 for additional documents.]
Walker v. Gordon 31 Jul 1776 Bankruptcy, Trusteeship William Alexander and Sons agreed to enter a co-partnership with George and Cuthbert Gordon for the production of cudbear (dye). The Alexanders made advances to the Gordons over a number of years. Due to mismanagement and disagreement among the partners, the cudbear company was unsuccessful, leading William Alexander and Sons to dissolve the company and seek payment on its advances. Cuthbert Gordon, defender, retained ownership of the cudbear company. Imprisoned for a debt owed to a third party, Gordon sought to sequester his assets. At issue in this case was who should have served as trustee for the creditors. Pursuer John Walker, as trustee for William Alexander and Sons, argued that Ellies Martin, a merchant in Leith, was the proper trustee. At a meeting of the creditors, Ellies Martin was elected trustee by the majority in value of the creditors present at the meeting. Walker also found it improper for Gordon to supervise his own affairs, since Gordon's mismanagement led to the company's demise. Cuthbert Gordon, however, maintained that he was the proper trustee, because certain creditors at the creditors' meeting selected him as trustee.
Walker v. Interlocutor 1802 Interlocutor, Alter, Bankruptcy The pursuer acted as agent of Smith, Johnstone and Company in Glasgow to buy some goods on its behalf. After one of the partners of the company died, it fell into a disorder and became bankrupt. Mr. Walker was appointed attorney to represent the company before the creditors’ meeting. The pursuer proposed certain measures to protect the creditors of Smith, Johnstone and Company; however, the agents of the creditors refused them. Then, the creditors agents wrote letters to discredit Mr. Walker. Therefore, he submitted an action against some creditors, as well as Mr. John Shiels and Robert Graeme, to recover damages incurred by their misrepresentations and illegal and oppressive acts. In the meanwhile, the pursuer entered into bankruptcy, so he brought the present petition to the lordship to modify the interlocutors with regards to his situation, to allow him to continue with the action of damages without the concurrence of the trustee and his creditors, and to submit some proof of the acts.
Watson v. Johnston 1771 Bankruptcy Andrew Scott, John Stark, Richard Stark, William James, and William Craig went bankrupt in 1760. Pursuer, John Watson, became an agent for the creditors of the bankrupt individuals. The bankrupts's estates were adjudged by their creditors and John Watson brought a process of ranking and sale. The creditors were accordingly ranked, with Marion Stark, wife of Andrew Scott, ranked primo loco. Then, defender, Thomas Johnston, a merchant in Glasgow, purchased at a judicial sale some effects of Andrew Scott's estate. This move was designed to help pay some of Scott's creditors, and to make annual payments of a liferent, to Scott's wife. The Defender died without paying the creditors, and his cautioner proved insolvent. Thus, Mr. Watson, Scott's creditors and Mr. Macneil of Callonsay a creditor of Johnston brought a process to sequestrate the subjects originally belonging to Andrew Scoot and purchased by Thomas Johnston. This is a multiple-poinding process where the creditors of the parties related to the bankrupt individuals claimed that Mr. Johnston had left his affairs in very great disorder.
Wilkie creditors v. Wilkie 10 Mar 1802 Bankruptcy, Creditor, Trustee When Alexander Wilkie was declared under the bankruptcy process, John Hill was appointed as the trustee for all his creditors. At first, Mr. Wilkie denied to be insolvent, so he refused to comply with the trustee's instructions and asked for a second examination. (It seemed to be the first time that someone refused to obey an order from the Court regarding the bankruptcy act.) After a second examination, the Court granted a reasonable indulgence. However, Wilkie's creditors (Sir William Augustus Cunninghame of Livingstone, Boronet; James Chalmer, Esq. of Abingdon Street, London; Mr. George Wilkie, Merchant in Dundee; and Thomas Martin, writer in Edinburgh), submitted a petition to remove John Hill, the previously appointed Trustee for the bankruptcy process.
William Allison v. Thomas Naismith 9 Jan 1770 Bankruptcy Robert Wither, a merchant in Stranraer, died in 1763, leaving many debts to his creditors. Thomas Naismith was one of Wither's creditors. Naismith was selected by the group of Naismith's creditors to manage the affairs of Wither's estate and organize payments to Wither's creditors. Alexander Kennedy of Ayr was one of Wither's creditors. Before Kennedy was paid by the Wither estate, his own affairs went into disorder. Two of Kennedy's creditors, Robert Muir and Fisher and Bannatyne, pursued arrestments in the hands of Mr. Naismith for the sums due by Wither to Kennedy. Pursuer William Allison was an agent for Kennedy's creditors. Naismith and Allison disputed the management of Wither's estate.
Wylie v. Duncan 8 Dec 1803 Bankruptcy, Deposition of land, Trustee In 1800, the pursuer granted some rights to Robert Archibald over certain lands in Glasgow. A considerable time after this transaction, Mr. Archibald fell into bankruptcy, so the trustee for his creditor, the defender, received Mr. Archibald’s properties, including the piece of land Mr. Archibald had received by pursuer. Pursuer brought an action to alter the interlocutors that included such land as a part of Mr. Archibald estate. He argued that the disposition over that land was not intended to be a sale, but rather, a security for a loan. Therefore, he was entitled to redeem the property upon payment of the credit. Trustee opposed the petition on the grounds that Mr. Archibald acquired the completed right of the land which is now vested in his creditors.