Wishart v. Hodge [1912] ScotLR 732 (31 May 1912)

Wishart v. Hodge [1912] ScotLR 732 (31 May 1912)

Where a creditor, with knowledge of the sequestration and without fault on the part of the trustee or bankrupt, fails to lodge a claim before the commissioners' deliverance, he is not entitled to interdict the trustee from distributing the estate, and must bear the consequences of his own lack of vigilance.

Citation
[1912] ScotLR 732
Parties
Pursuer/respondent: George Hodge, C. A., Glasgow, judicial factor on the trust estate of the late Mrs Elizabeth Kerr; Defender/appellant: John Wishart, accountant, Glasgow, trustee on the sequestrated estates of Hugh Kerr, contractor, Glasgow
Jurisdiction
Scotland
Judgment Date
31 May 1912
Procedural Posture
Civil Appeal / Appeal From Sheriff Court to Inner House, Second Division
Outcome
appeal sustained; interlocutor recalled; interdict refused
Legal Topics
Sequestration, Distribution of Estate, Dividend, Omission to Lodge Claim, Interdict, Bankruptcy (scotland) Act 1856, Sec. 125
Bankruptcy Trusts and Estates Sequestration Distribution of Estate Dividend Omission to Lodge Claim Interdict Bankruptcy (scotland) Act 1856, Sec. 125

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Parties

George Hodge, C. A., Glasgow, judicial factor on the trust estate of the late Mrs Elizabeth Kerr

Pursuer/respondent

John Wishart, accountant, Glasgow, trustee on the sequestrated estates of Hugh Kerr, contractor, Glasgow

Defender/appellant

Procedural Posture

Civil Appeal / Appeal From Sheriff Court to Inner House, Second Division

Legal Issues

  1. 1 Whether a creditor who failed to lodge a claim before the commissioners declared a first and final dividend is entitled to interdict the trustee from distributing the estate.
  2. 2 Whether knowledge of the sequestration and absence of fault by the trustee preclude equitable relief for the late creditor.

Ratio Decidendi

Where a creditor, with knowledge of the sequestration and without fault on the part of the trustee or bankrupt, fails to lodge a claim before the commissioners' deliverance, he is not entitled to interdict the trustee from distributing the estate, and must bear the consequences of his own lack of vigilance.

Court Disposition

appeal sustained; interlocutor recalled; interdict refused

Orders

  • The appeal is sustained.
  • The interlocutor of the Sheriff-Substitute is recalled.