Scottish Court of Session Decisions

In October, 1837, the estates of David Kirkland, grocer, Cumnock, were sequestrated under the Bankrupt Act, and James Crawford, banker in Cumnock, was elected interim-factor. At the first meeting of creditors, when an application for a personal protection to Kirkland was considered, two of the creditors dissented. The rest of the creditors did not amount to the requisite statutory proportion, either in number or value. Notwithstanding this, a petition for personal protection was presented in name of the bankrupt, with concurrence of Crawford, the interim-factor. Answers to the petition were lodged, stating that it was not supported by the requisite concurrence, and therefore could not be granted. The Lord Ordinary on the Bills, on Monday, 13th Nov., pronounced this interlocutor:—“Having considered the petition and answers, in respect that the answers have been seen by the petitioner's agents, and that he has neither applied for leave to lodge replies, or to be heard in any shape on the answers, holds the petitioner as confessed on the allegations in the answers, and refuses the petition, and finds the petitioner liable in expenses.”

Some time afterwards, but not until this interlocutor had become final, the respondents lodged a note with the Lord Ordinary on the Bills, stating that the finding of expenses would be inoperative if directed merely against the bankrupt; that the interim-factor was equally liable, as the petition could not have been presented without his concurrence, and, in the circumstances, he ought not to have given his concurrence; that it was the intention of the Lord Ordinary, in pronouncing the above interlocutor, to subject the interim factor as well as the bankrupt in expenses, and that the interlocutor ought still to be so qualified.

Answers were lodged to the note, pleading that the interlocutor of the Lord Ordinary had been allowed to become final, and could no longer be altered either by the Lord Ordinary or by the Inner-House without the respondent's consent. The answers also stated that the interim-factor had merely given his concurrence to the effect of enabling the bankrupt to lay the case before the Court; and, therefore, that the interim-factor ought not to be subjected in expenses even if the question were open.

The Lord Ordinary then issued the following note:—“1st December, 1837. Agents to attend the Lord Ordinary in the Parliament-House to-morrow at 10 o'clock.”

The petitioner's agent refused to attend, or to consent to any alteration of the interlocutor, and the Lord Ordinary intimated that he would report the case to the Inner-House. His Lordship made an oral report, explaining that, in pronouncing the interlocutor, he had intended to subject the interim-factor in expenses, but that, as he doubted his power to do so now, or to alter his interlocutor in any respect without the consent of both parties, he had reported the case, in order that their Lordships might interpone a remedy, and rectify his interlocutor if they considered it competent to do so.

No appearance was made for the petitioner or interim-factor, and