Forbes' Trustee v. Forbes [1903] ScotLR 40_369 (20 February 1903)

Forbes' Trustee v. Forbes [1903] ScotLR 40_369 (20 February 1903)

A trustee in cessio bonorum, even if holding a disposition omnium bonorum, does not have title to reduce prior alienations or preferences unless he is the assignee of creditors who themselves would have had such a title. The relevant statutes and case law do not confer such a right on the trustee merely by virtue of his office or the disposition. The Debtors Act 1880 did not alter this position.

Citation
[1903] ScotLR 40_369
Parties
Pursuer/respondent: William Hugh Jardine (Forbes' Trustee); Defender/reclaimer: Elizabeth Forbes; Defender: Mrs Elizabeth Maclean Blair or Forbes
Jurisdiction
Scotland
Judgment Date
20 February 1903
Procedural Posture
Civil (reduction of Alienation in Bankruptcy/cessio) / Appeal (reclaiming Motion) From Lord Ordinary to Inner House
Outcome
action dismissed
Legal Topics
Cessio Bonorum, Illegal Preference, Title to Sue, Reduction of Alienation, Trustee Powers
Bankruptcy Property Law Civil Procedure Cessio Bonorum Illegal Preference Title to Sue Reduction of Alienation Trustee Powers

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 3 Authorities cited 10 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

William Hugh Jardine (Forbes' Trustee)

Pursuer/respondent

Elizabeth Forbes

Defender/reclaimer

Mrs Elizabeth Maclean Blair or Forbes

Defender

Procedural Posture

Civil (reduction of Alienation in Bankruptcy/cessio) / Appeal (reclaiming Motion) From Lord Ordinary to Inner House

Legal Issues

  1. 1 Does a trustee in cessio bonorum, holding a disposition omnium bonorum, have title to reduce an alleged illegal preference granted by the debtor to a relative?
  2. 2 Does the Debtors Act 1880 or subsequent legislation enlarge the trustee's rights to reduce such preferences?

Ratio Decidendi

A trustee in cessio bonorum, even if holding a disposition omnium bonorum, does not have title to reduce prior alienations or preferences unless he is the assignee of creditors who themselves would have had such a title. The relevant statutes and case law do not confer such a right on the trustee merely by virtue of his office or the disposition. The Debtors Act 1880 did not alter this position.

Court Disposition

action dismissed

Orders

  • interlocutor of the Lord Ordinary recalled
  • action dismissed