Scottish Court of Session Decisions

James Martin, residing in Strathbungo, Renfrewshire, raised a process of cessio bonornm before the Sheriff of Renfrewshire, under 6 and 7 W. IV. c. 56. He was liberated from prison, upon lodging a bond of caution in terms of § 15 of the statute, which requires such bond to belodged, binding the pursuer and his cautioner “that he shall attend all diets of Court whenever required, under such penalty as may be reasonable, and which, if forfeited, shall be divided among the creditors.” The penalty in the bond was £50.

John Murray, victualler, Bathgate, appeared as an opposing creditor. Martin lodged a statement of his affairs, and underwent an examination, in which he was not required to be put on oath. Parties were then heard, viva voce, and the Sheriff made a note of the objections taken by Murray, and the answers stated by Martin. The Sheriff then made avizandum with the objections and answers, and afterwards assigned a day for Martin to attend and hear judgment pronounced. On that day Martin attended, and the Sheriff appointed him to make oath in common form, which was done. On the same day, 14th March, 1837, the Sheriff “granted the benefit of cessio bonorum in favour of the pursuer, conform to law;” but, in respect of certain irregularities of the pursuer, “superseded extract for 60 days from and after this date, during which time the pursuer shall remain subject to the diligence of his creditors, &c.” Both parties lodged reclaiming petitions, and the Sheriff-Substitute, on 4th April, 1837, pronounced an interlocutor, which, inter alia, “superseded extract for the specified period after final judgment given in the cause;” and which concluded in these terms:—“The Sheriff-Substitute ‘being disposed to refuse the petitions’ ^* makes avizandum with the process to the Sheriff.”

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^* Words quoted in the interlocutor from § 7 of the statute.

On May 9, 1837, the Sheriff-Substitute “appointed the pursuer to attend personally in Court upon the 16th May current, to hear sentence pronounced in causa.”

On 16th May the record bore that there was “no process.” On 23d May the Sheriff-Substitute appointed 30th May for the pursuer to appear personally. The pursuer appeared, and Murray craved a continuation of the appointment for personal attendance to another diet. The Sheriff pronounced an interlocutor allowing this motion to be discussed on minute and answers, and, in the mean-time, discharged the order for personal attendance. Minute and answers were lodged, after which the Sheriff-Substitute, on 13th June, “assigned the 20th June for the pursuer to attend Court personally, and hear sentence given in causa.” Murray then craved the opinion of the Sheriff-Depute, which was allowed. On 20th June, “the Sheriff-Substitute having heard parties, viva voce, and that the process is under appeal to the Sheriff, although not yet transmitted, continues the diet for pronouncing sentence till the 27th current, and also for the pursuer personally to attend, of which notice is given to him apud acta.” On 27th June, the diet for the pursuer's appearance was, of consent, continued. On 4th July, “the Sheriff-Substitute, in respect that the process is at avizandum with the Sheriff-Depute, continues the diet to the 11th current, in terms of the last appointment, the pursuer then to appear.” The same interlocutor was repeated on 11th July. The record of the process thereafter bore “25th July, 1837.—Pursuer called—fails to appear.” “Paisley, 25th July, 1837.—The Sheriff-Substitute having advised with the Sheriff, adheres to the interlocutor of the 13th June last.” Murray then craved forfeiture of the pursuer's bail-bond, to which objections, viva voce, were stated on the part of the pursuer. Minute and answers for Murray and the pursuer were afterwards allowed by the Sheriff, after which the following interlocutor was pronounced:—“12th October, 1837.—The Sheriff-Substitute having considered the minute for the objector Murray, craving forfeiture of the pursuer's bond, in respect of his failure to appear in Court conform to the order of Court, dated 11th July last, together with the pursuer's answer thereto, and previous procedure, finds and adjudges the bond of caution granted by the pursuer to be forfeited, and authorizes the clerk of Court to issue an extract thereof in name of the objector Murray, to the end that execution may pass at his instance for recovery of the penalty of £50 therein stipulated, and now forfeited, and to be divided by him, as trustee, among the whole creditors of the pursuer, rateably, according to their several debts, as accords: Recalls the interim warrant of liberation granted in this cause, and sists farther procedure therein at the pursuer's instance in hoc statu, and decerns.”

On 20th October, Martin lodged a reclaiming note with one of the clerks of the First Division of the Court, in terms of § 8 of the statute, praying the Court “to recall and alter the said last recited interlocutor of 12th October, 1837—to find him entitled to the benefit of the cessio, and to decern in terms of the prayer of the original petition to the Sheriff, with expenses, or otherwise to do, &c.”

In support of his reclaiming note, Martin pleaded that, after the Sheriff-Substitute had made avizandum with the process to the Sheriff-Depute, the process was no longer before the Sheriff-Substitute until the Sheriff-Depute should have advised it and returned it. Every interlocutor of the Sheriff-Substitute, while the process was thus at avizandum, was therefore incompetent, there being no process before him. But the interlocutor of 11th July, ordaining the pursuer to appear, at a continued diet, bore to be pronounced, “in respect that the process is at avizandum with the Sheriff-Depute,” and thus contained evidence, in gremio, of its own incompetency. And as it was for failure to appear at the diet fixed by this interlocutor that the bail-bond had been forfeited, the interlocutor forfeiting it ought to be recalled; and Martin should be found entitled to the benefit of the cessio.

Murray answered that, notwithstanding the interlocutor making avizandum with the process to the Sheriff-Depute, it was necessary and competent, in the circumstances, for the Sheriff-Substitute to pronounce an interlocutor to the limited effect of continuing the diet for the pursuer's personal appearance, until the process should be returned from the Sheriff-Depute. This was all that had been done; and the effect of such interlocutor was merely to preserve matters in statu quo during the time that the process was at avizandum. The whole procedure in forfeiting the bond was therefore regular. But, in any event, it was only the interlocutor of 12th October which was competently brought under review, and the Court could not entertain the more general prayer of the reclaiming note.