Selkrig (Trustee for Creditors of Fairholmes), - Appellant; Davies and Salt (Assignees under a Commission against Garbett, a Bankrupt), - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 23 March 1814 |
| Date | 23 March 1814 |
| Court | House of Lords |
English Reports Citation: 3 E.R. 848
APPEAL FROM THE COURT OF SESSION.
Mews' Dig. ii. 314, 1322. 3 Scots R. R. 187; and see, further, Scotch authorities cited at p. 195. Followed in Banco de Portugal v. Waddell, 1880, 5 A. C. 161; and In re Pim, 1881, 7 L. R. Ir. 458.
It is now settled law in Scotland, founded on a principle of international law, that the assignment under an English commission of bankrupt vests in the assignees, ipso jure, and without the necessity of intimation, the whole of the bankrupt's personal or moveable property in Scotland; and that the effect of all subsequent diligence, by any Scotch or other creditor, is thereby precluded. Thus, where a commission, issued in England, against a person, part of whose property consisted of certain shares of Carron stock, and a creditor in Scotland afterwards arrested these shares, [231] it was held by the Court of Session, and, on appeal, by the House of Lords, upon the above ground, that the title of the assignees was prefer-able.
Held, that the dealing by the assignees with the Company, respecting the shares, after the expiration of a sequestration, by force of which they might be supposed to have at first acted, was sufficient intimation, if it had been necessary; and that the arrester having claimed under the commission, was thereby also precluded from availing himself of his arrestment.
No authority given by the English bankrupt statutes to compel a bankrupt, by legal process, to convey his Scotch real or heritable property to the assignees, but the amount sometimes brought into the common fund, by the creditors assigning their debts to an individual, who proceeds against the heritage according to the Scotch forms, or by the refusal of the certificate till the bankrupt consents to convey.
SCOTLAND. APPEAL FROM THE COUET OF SESSION. selkrig (Trustee for Creditors of faieholmes),-Appellant; davies and salt (Assignees under a Commission against gaebett, a Bankrupt),-Respondents [March 23, 1814]. [Mews' Dig. ii. 314, 1322. 3 Scots R. R. 187 ; and see, further, Scotch authorities citedatp. 195. Followedin Banco de Portugal v. Waddell, 1880, 5 A. C. 161; and In re Pirn, 1881, 7 L. R. Ir. 458.] [It is now settled law in Scotland, founded on a principle of international law, that the assignment under an English commission of bankrupt vests in the assignees, ipso jure, and without the necessity of intimation, the whole of the bankrupt's personal or moveable property in Scotland; and that the effect of all subsequent diligence, by any Scotch or other creditor, is thereby precluded. Thus, where a commission, issued in England, against a person, part of whose property consisted of certain shares of Carron stock, .and a creditor in Scotland afterwards arrested these shares, [231] it was held by the Court of Session, and, on appeal, by the House of Lords, upon the above ground, that the title of the assignees was preferable.] [Held, that the dealing by the assignees with the Company, respecting the shares, after the expiration of a sequestration, by force of which they might be supposed to have at first acted, was sufficient intimation, if it had been necessary; and that the arrester having claimed under the commission, was thereby also precluded from availing himself of his arrestment.] [No authority given by the English bankrupt statutes to compel a bankrupt, by legal process, to convey his Scotch real or heritable property to the assignees, but the amount sometimes brought into the common fund, by the creditors assigning their debts to an individual, who proceeds against the heritage according to the Scotch forms, or by the refusal of the certificate till the bankrupt consents to convey.] Mr. Samuel Garbett, one of the founders of the Carron iron works, carried on considerable trading concerns both in England and Scotland. Mr. Garbett being indebted to the estate of Messrs. .Fairholmes, bankrupts, Mr. Grant, trustee for the Fairholmes' creditors, in 1773, arrested certain shares of Carron stock, belonging to Mr. Garbett. In 1774, it was'agreed that the arrestments should be withdrawn, in consequence of an arrangement from which the Fairholmes' creditors derived some advantage, but not the whole that was stipulated. The arrestment instead of being formally vacated, was made over by Mr. Grant to the trustee for the creditors of Mr. Garbett's son and son-in-law, bankrupts, for the alleged purpose of extricating their concerns, which were involved with those of Mr. Garbett. No process of forthcoming was instituted; but the arrestments were founded [232] upon in certain subsequent proceedings, which, as was contended, prevented the prescription. In March, 1782, a commission of bankrupt in England issued against Mr. Garbett, and in April of the same year, his effects in Scotland were, on his own application, 848 SELKRIG V. DA VIES [1814] II DOW. sequestrated, with the consent of, or without any opposition from, the assignees under the commission. No formal intimation of the assignment was given to the Carron Company ; but as the assignees (one of whom was a trustee under the sequestration) corresponded with the Company on the subject of the shares, and continued to deal with, or to claim the right to deal with, these shares after the sequestration had expired, the question was raised, Whether this was, or was not, sufficient intimation 1 Mr. Grant offered to prove under the English commission, upon affidavit of the debt remaining due to the Fairholmes1 creditors, and that he held no other security for it, except a decree of adjudication, not mentioning the arrestment. The proof was opposed, but a claim for £15,000 was allowed to be entered. Mr. Selkrig, the Appellant, having succeeded Mr. Grant in 1793, renewed the application to be permitted to prove under the English commission, and made an affidavit, stating the agreement for withdrawing the arrestment of 1773, and produced certificates from the Signet Office, with a view to show that the arrestment had expired. The Commissioners were ordered to report on the state of the facts in regard to this claim, but before the proceedings under the order were terminated, Mr. Selkrig, finding that the sequestration of 1782, [233] not having been renewed in terms of the Bankrupt Acts, 23 Geo. 3, cap. 18, and 33 Geo. 3, cap. 74, had expired, raised an action against Mr. Garbett in Scotland, and, in 1798, arrested the shares of Carron stock. In an action of multiple-poinding, soon after brought at the instance of the Carron Company, the question of preference, as between the English commission and the Scottish arrestments, came before the Court. The Court of Session was unanimous in favour of the general principle, that the English assignment transferred the whole of the bankrupt's personal property, wherever situated; and that the effect of the subsequent arrestment of 1798 was thereby barred. All, except Lord Armadale, appeared to have been of opinion, that the Appellant was, by the agreement of 1774, precluded from founding on the arrestments of 1773. Lord...
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