Hamilton v Caldwell
| Jurisdiction | Scotland |
| Judgment Date | 20 June 1916 |
| Date | 20 June 1916 |
| Docket Number | No. 94. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Dundas, Lord Salvesen, Lord Guthrie.
BankruptcySequestrationDischargeConditionAssignation of part of bankrupt's salaryBeneficium competentiBankruptcy (Scotland) Act, 1913 (3 and 4 Geo. V. cap. 20), sec. 143.
Circumstances in which the Court ordered a bankrupt, as a condition of obtaining his discharge, to assign for behoof of his creditors 100 per annum out of his salary of 500; and, in the event of the salary being reduced, to assign the excess, if any, over 400 per annum.
On 8th December 1915 John Hamilton, 2 Kelvinside Terrace, Glasgow, whose estates had been sequestrated on 3rd November 1913, presented a petition for discharge in the Sheriff Court at Glasgow. The petitioner averred that two years had elapsed since the award of sequestration, that a dividend of 5s. in the pound had been paid, and that the trustee had reported in favour of the petition being granted; and he accordingly craved that he might be discharged in terms of sections 143 and 146 of the Bankruptcy (Scotland) Act, 1913.1
A note of objections was lodged by the Right Honourable James Caldwell, a creditor in the sequestration. The objector was the creditor in a heritable bond for 1300 granted in 1893, the security subjects being the bankrupt's dwelling-house in Glasgow. Owing to the heavy fall in the value of such property since the granting of the bond the security was valued at 500 only, and the objector obtained a ranking as an ordinary creditor for the balance of 800. He averred that the bankruptcy had been caused by the bankrupt's extravagance, particularly in continuing to live at 22 Athole Gardens, Glasgow, a house too large and expensive for his means. He further averred:(Obj. 5.) The bankrupt, who now resides in a very much smaller house or flat, is in receipt of a fixed salary from William Beardmore & Co., Limited, Glasgow, of 500 per annum, in addition to income from his father's estate. This total income is
more than sufficient to support him in adequate comfort, and the objector submits that his discharge should not be granted until he has repaid his creditors in full, or at least made a substantial payment to account of their claims. The amount still due to his creditors is somewhere about 1400, and this sum could easily be paid in full by the bankrupt in the course of a few years, and for that reason the discharge should be withheld till this has been done. The bankrupt is entitled under his marriage-contract to a liferent of his wife's separate estate in the event of her predecease.
The petitioner averred:(Ans. 5.) Denied. The salary of 500 is barely sufficient to enable the bankrupt to fill the position he occupies. His employers engaged him to organise the numerous social functions which shipbuilders in an extensive way find necessary, and important personages from all parts of the world have to be taken about. These duties lead to expenditure on the part of the employee not chargeable against the employers, but reckoned to be covered by the salary. The person eligible for such a position must himself live and move among the class with whom his duties lie. No other creditor has lodged objections to the discharge, and the trustee's report is favourable to the granting of the...
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Caldwell v Hamilton
...v. MitchellSC, (1881) 8 R. 933, discussed, and opinion of Lord Fraser (Ordinary), at p. 935, disapproved. (VideHamilton v. Caldwell, 1916 S. C. 809 and Hamilton's Trustee v. Caldwell, supra, p. The Right Honourable James Caldwell, 12 Grosvenor Terrace, Glasgow, a creditor and commissioner i......
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Hamilton's Trustee v Caldwell
...objector in person and counsel for the trustee, the Court recalled the sist and refused the petition. * Reported, Hamilton v. Caldwell, 1916 S. C. 809. * In his note the Sheriff-substitute stated his view that, subject to the statutory formalities, a trustee in bankruptcy was always entitle......