M'Bean and Others v. Wight and Dewar

This was an application for recal of the sequestration of the estates of Smith, Mair, & Company, engineers in Glasgow, and John Mair a partner of that company. The sequestration was awarded by Lord Barcaple on 6th April 1868, on the petition of the respondent, Peter Dewar, a creditor. The other respondent, John Wight, was trustee in the sequestration.

Various pleas were stated on record in support of the application. It was said (1) that there was no proper citation of parties to the petition for sequestration; (2) that there was no evidence of notour bankruptcy produced to the Lord Ordinary; (3) that there was no estate belonging to Smith, Mair & Company which could be sequestrated: and (4) that the sequestration was unnecessary and inexpedient. The only plea now insisted in was the second.

The Lord Ordinary ( Kinloch ) found that no sufficient ground had been shown for a recal of the sequestration, and therefore refused the petition with expenses. He added the following

“ Note —The sequestration sought to be recalled was issued of the estates of Smith, Mair & Co., and of John Mair, one of the partners thereof, as such partner, and as an individual, on 6th April 1868.

There had been another partner of the company, John Smith, who, after the dissolution of Smith, Mair & Co., had carried on business under the firm of John Smith & Co. On 2d January 1868 a sequestration had issued of the estates of this company, and of ‘John Smith, the sole partner thereof, as an individual, and also as partner of the dissolved firm of Smith, Mair & Co.’