Scottish Court of Session Decisions

Charles E. Paterson presented a petition in the Sheriff Court at Edinburgh against David Hay Wilson, S.S.C., for decree ordaining him to execute a disposition omnium bonorum for behoof of his creditors, and for the appointment of a trustee on his estate. He averred that the defender was notour bankrupt within the meaning of the Bankruptcy Act 1856 or the Debtors Act 1880, and was unable to pay his debts; that certain of his effects had been sold by the Sheriff's warrant, under decree of sequestration for rent; and that he was a creditor of the defender to the extent of £9, 13s. 4d., which sum was composed of the a mount of two debts both constituted

Page: 578↓

by decree against the defender, to which the pursuer had acquired right by assignation from the creditors who held the decrees. The pursuer gave a list of the defender's creditors as far as known to him, to the number of five, including himself, and stated that notice had been given to the defender in terms of the Act of Sederunt of 22d December 1882.

There were no answers to the pursuer's statements.

The Sheriff-Substitute ( Rutherfurd) on 4th June 1883, being satisfied from the productions that there was prima facie evidence of the notour bankruptcy of the defender, pronounced an order for service of the petition and deliverance upon him, and for publication of the statutory notice to the creditors in the Gazette, and ordained the defender to appear for examination, and to lodge a state of his affairs.

The defender entered an appeal to the Court of Session, but afterwards abandoned it. On the process being retransmitted to the Sheriff Court, the Sheriff-Substitute, on 10th of July following, gave decree against the defender for £3, 3s. of expenses.

On 22d January 1884 the Sheriff-Substitute, on the motion of the pursuer's agent, again ordered service of the petition and deliverance on the defender, and publication of the Gazette notice, and ordained the defender to appear for examination on 4th February following, and to lodge a state of his affairs.

On the 4th of February, after the bankrupt had been sworn with a view to his examination, his agent asked leave to state objections to the competency of the proceedings. The Sheriff-Substitute refused the motion, and in respect that no state of affairs had been lodged by the debtor, adjourned the diet till the 18th inst., on the understanding that a state of affairs would be lodged by the defender not later than the 11th.

The defender appealed to the Sheriff, and put in a minute stating that he had tendered payment of the debt alleged to be due to the pursuer along with the £3, 3s. of expenses awarded by the Sheriff-Substitute, in respect of the appeal which had been departed from, amounting in all to the sum of £12, 16s. 4d.; that the tender had been refused by the pursuer's agent; that under rehearings of the decrees referred to in the condescendence, the pursuer's agent had uplifted from the Sheriff Clerk sums amounting to £1, 8s. 5d., which fell to be credited to account of the said sum of £12, 16s. 4d.; and that he had consigned in the hands of the Clerk of Court the balance—£11, 7s. 11d.

The Sheriff ( Davidson) on 13th February, in respect of the minute and of the consignment, appointed the Clerk of Court to pay the consigned sum to the pursuer, and dismissed the action.

An appeal was taken to the Court of Session, the appeal being signed by the pursuer and by the agent for two alleged creditors named Meikle, and by two creditors named Hogg and Sturrock. The names of these creditors were not included in the list given by the pursuer in his condescendence, and they had entered no appearance in the Sheriff Court. They now lodged minutes in the Court of Session, craving to be sisted as appellants. The alleged debt of two of the appellants Meikle had been incurred before the date of a sequestration of defender which had taken place some years before the present process, and had never been constituted against him.

Argued for the appellants—(1) The Sheriff's interlocutor of February 13th was incompetent in respect that the case was not then competently before him. The appeal to the Sheriff from the Sheriff-Substitute's interlocutor of February 4th was incompetent in respect that it did not fall within any of the categories of questions on which appeals were allowed by the Sheriff Court Acts either of 1853 or 1876 (16 and 17 Vict. c. 80, sec. 19; 39 and 40 Vict. c. 70, sec. 26, subsec. 4) — Adam & Son v. Kinnes, February 27, 1883, 10 R. 670. (2) It was competent for the present appellants, other than the pursuer, being creditors, to appeal, for a cessio was analogous to a sequestration, in which the right of appeal was open to any creditor though he were not a petitioning creditor (19 and 20 Vict. c. 79, sec. 34). Besides, by the Cessio Act of 6 and 7 Will. IV. (c. 56) right of appeal was expressly given to “any person aggrieved” (sec. 8). Further, all the creditors were necessarily parties to a process in the Sheriff Court, for they were all called by Gazette notice, published by order of the Sheriff under section 9 of the Debtors Act of 1880. The “parties” to whom the Sheriff was directed (sub-sec. 3) to allow proof could only mean those who had been summoned by such notice to appear and state their claims.

Replied for the defender—The appeal was competent to the Sheriff under the Sheriff Court Acts. But even if it were not, the interlocutor of the Sheriff of 13th February was competently pronounced, for he might deal with a case which had been brought before his Substitute, who represented himself. The Act of William IV. applies only to the old form of cessio at the instance of the bankrupt himself, not to the present application, which was as that of a creditor under the Debtors Act. The pursuer had appealed merely on a question of expenses. (2) The other appellants had no right to ask to be sisted now since they had not appeared in the Sheriff Court. The analogy of a sequestration failed, because the right of appeal given to the creditors there was so given by special statutory provision. It could not be assumed to exist in a cessio, which was a process created and ruled by a statute which contained no such provision.

At advising—