M'Culloch (Jack's Trustee) v. Jack's Trustees

The Court ( reversing Sheriff-Substitute Glegg and Sheriff Millar), dismissed the petition, holding that the examination of the testamentary trustees, not upon the question of whether the bankrupt had disclosed his whole estate or not, but upon collateral matters which might affect the pecuniary value of the bankrupt's estate, was incompetent.

By the Lord President—“The whole scope of those sections” ( i.e . 90 and 91) is to trace property which the bankrupt may otherwise have concealed. Once that is traced and identified, there, it seems to me, is an end of the matter. If the property is then recoverable the trustee can sue. If it is not, he must wait.”

The Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), sections 90 and 91, is quoted in the rubric. The Bankruptcy and Cessio (Scotland) Act 1881 (44 and 45 Vict. cap. 22), section 10, authorises the Sheriff in proceedings under the Cessio Acts to exercise the powers and grant the warrants and commissions which in sequestrations he is empowered to exercise under the 90th and 91st sections of the Bankruptcy (Scotland) Act 1856.

George M'Culloch, trustee in the cessio of the estate of William Jacks, Arnold Avenue, Bishopbriggs, presented a petition in the Sheriff Court at Glasgow, in which he craved the Court to fix a date for the public examination of Mrs Ferguson Steven or Jacks and others, the testamentary trustees of William Jacks, and to grant warrant requiring them then to appear in terms of section 10 of the Bankruptcy and Cessio (Scotland) Act 1856.

On 5th May 1909 the Sheriff-Substitute ( Glegg ) sustained the competency of the petition and granted leave to reclaim.