Hemming v. Galbraith [1908] ScotLR 737 (06 June 1908)

Hemming v. Galbraith [1908] ScotLR 737 (06 June 1908)

It is incompetent under section 142 of the Bankruptcy (Scotland) Act 1856 to bring a general action for accounting against a discharged trustee in respect of matters already adjudicated on under section 141, and the pursuer's averments were irrelevant as there was no allegation that the items objected to had not already been investigated.

Citation
[1908] ScotLR 737
Parties
Pursuer/appellant: Fred Oliver Hemming; Defender/respondent: William Brodie Galbraith
Jurisdiction
Scotland
Judgment Date
06 June 1908
Procedural Posture
Civil Appeal (bankruptcy/accounting) / Appeal From Sheriff to Court of Session Inner House, First Division
Outcome
appeal refused; action dismissed
Legal Topics
Trustee Discharge, Accounting by Trustee, Composition in Bankruptcy, Competency of Action, Relevancy of Averments
Bankruptcy Civil Procedure Trustee Discharge Accounting by Trustee Composition in Bankruptcy Competency of Action Relevancy of Averments

Case Brief

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Parties

Fred Oliver Hemming

Pursuer/appellant

William Brodie Galbraith

Defender/respondent

Procedural Posture

Civil Appeal (bankruptcy/accounting) / Appeal From Sheriff to Court of Session Inner House, First Division

Legal Issues

  1. 1 Whether a discharged trustee can be compelled to account at the instance of the bankrupt under section 142 of the Bankruptcy (Scotland) Act 1856 after the sequestration has ended and the trustee is discharged
  2. 2 Whether a general accounting is competent under section 142 for matters already adjudicated on under section 141
  3. 3 Whether the pursuer's averments were relevant in the absence of specific allegations that the items objected to had not already been investigated

Ratio Decidendi

It is incompetent under section 142 of the Bankruptcy (Scotland) Act 1856 to bring a general action for accounting against a discharged trustee in respect of matters already adjudicated on under section 141, and the pursuer's averments were irrelevant as there was no allegation that the items objected to had not already been investigated.

Court Disposition

appeal refused; action dismissed

Orders

  • affirmed the interlocutor of the Sheriff
  • dismissed the action anew