Galbraith v. Stewart [1910] ScotLR 548 (18 March 1910)

Galbraith v. Stewart [1910] ScotLR 548 (18 March 1910)

The Bankruptcy (Scotland) Act 1856 does not authorise a trustee to sell book debts by private sale within twelve months of sequestration; only after twelve months, and then only by auction with statutory formalities, may such assets be sold. Private sale of book debts is invalid and does not confer title on the assignee.

Citation
[1910] ScotLR 548
Parties
Pursuer: William Brodie Galbraith, C.A., Glasgow, trustee on the sequestrated estates of the late John Hogarth, writer, Glasgow; Defender/appellant: Robert Stewart, accountant, Glasgow; Defender (in Stewart V. Crookston): James Crookston junior, coalmaster, Glasgow
Jurisdiction
Scotland
Judgment Date
18 March 1910
Procedural Posture
Civil Appeal (bankruptcy) / Appeal to Court of Session Inner House, First Division, Heard Before Seven Judges
Outcome
Appeal dismissed in Stewart v. Crookston; appeal allowed in part and interlocutors adjusted in Galbraith v. Stewart.
Legal Topics
Sequestration, Trustee Powers, Sale of Book Debts, Private Sale, Statutory Interpretation
Bankruptcy Insolvency Sequestration Trustee Powers Sale of Book Debts Private Sale Statutory Interpretation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 6 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

William Brodie Galbraith, C.A., Glasgow, trustee on the sequestrated estates of the late John Hogarth, writer, Glasgow

Pursuer

Robert Stewart, accountant, Glasgow

Defender/appellant

James Crookston junior, coalmaster, Glasgow

Defender (in Stewart V. Crookston)

Procedural Posture

Civil Appeal (bankruptcy) / Appeal to Court of Session Inner House, First Division, Heard Before Seven Judges

Legal Issues

  1. 1 Whether a trustee in bankruptcy may sell book debts by private sale within twelve months of sequestration under the Bankruptcy (Scotland) Act 1856
  2. 2 Whether such a sale is valid and effectual to confer title on the assignee

Ratio Decidendi

The Bankruptcy (Scotland) Act 1856 does not authorise a trustee to sell book debts by private sale within twelve months of sequestration; only after twelve months, and then only by auction with statutory formalities, may such assets be sold. Private sale of book debts is invalid and does not confer title on the assignee.

Court Disposition

Appeal dismissed in Stewart v. Crookston; appeal allowed in part and interlocutors adjusted in Galbraith v. Stewart.

Orders

  • In Stewart v. Crookston: Affirmed the interlocutors of the Sheriff and Sheriff-Substitute, dismissed the appeal, and repeated the findings in fact and law.
  • In Galbraith v. Stewart: Recalled the interlocutors of the Sheriff and Sheriff-Substitute, sustained the fourth plea-in-law for the pursuer, repelled the defences, and ordained the defender to deliver the I O U.