Scottish Court of Session Decisions

Upon 18th March 1890 the Sheriff-Substitute ( Mackenzie) at Dornoch pronounced the first deliverance upon a petition for cessio at the instance of William Ewart, butcher, Alness, and Alexander John Dallas, solicitor, Tain, against James Mackenzie, farmer, Walkerdale, Rosehall, and appointed 15th April for the public examination of the bankrupt.

On 15th April, upon the application of the debtor's agent, the proceedings were adjourned to 6th May. The debtor received no fresh citation, and failed to appear upon that date. His agent, however, was present, and explained to the Sheriff-Substitute the cause of his absence.

Thereupon the Sheriff-Substitute pronounced the following interlocutor:—“Having heard parties' procurators in respect the debtor has failed to appear at this diet for examination as ordered by last interlocutor, and has not taken means to satisfy the Sheriff-Substitute that his absence was not wilful, Decerns the debtor James Mackenzie … to execute a disposition omnium bonorum to and in favour of Robert Munro, writer, Tain, who is hereby appointed trustee for behoof of the creditors of the said debtor.” …

The Bankruptcy and Cessio (Scotland) Act 1881 (44 and 45 Vict. c. 22), provides by section 9 that “If the debtor fail to appear in obedience to the citation under a process of cessio bonorum at any meeting to which he has been cited, and if the Sheriff shall be satisfied that such failure is wilful, he may in the debtor's absence pronounce decree of cessio bonorum.”

In December 1890 James Mackenzie brought an action in the Court of Session against William Ewart, A. J. Dallas, and Robert Munro for reduction of the said decree of cessio, and for damages against the first two defenders for applying for and obtaining said decree. He made certain averments intended to show that Dallas had throughout acted towards him in a malicious, oppressive, and nimious manner; that he was solvent at the date of the decree; and that in consequence of the decree having been pronounced he had suffered greatly in health and position.

He pleaded, inter alia—“(1) The decree of cessio is illegal, unwarrantable, and invalid, and ought to be reduced, in respect… (c) that the pursuer was not notour bankrupt, or wilfully absent from the diet of 6th May in the sense of the Cessio Acts. … (3) The defenders having, jointly and severally or severally, by the malicious, wrongful, and oppressive proceedings complained of, injured the pursuer in his feelings, health, and estate, repute and credit, in the manner condescended on, are liable to him in damages and solatium as concluded for.”

On 24th February 1891 the Lord Ordinary ( Kincairney) found the pursuer's averments irrelevant to infer the conclusions of the summons, and assoilzied the defenders.

“ Opinion.—… . The decree of cessio was challenged because it was pronounced in the pursuer's absence at a diet to which he was not cited. There is no provision in the Debtors. Act 1880 as to granting decree of cessio in absence of the debtor, and the power of the Sheriff to do so seems to depend on section 9 of the Cessio Act 1881, which provides that ‘If the debtor fail to appear in obedience to the citation under a process of cessio bonorum at any meeting to which he has been cited, and if the Sheriff shall be satisfied that such failure is wilful, he may in the debtor's absence pronounce decree of cessio bonorum.’

In Reid v. Somerville & Company, June 6, 1889, 16 R. 751, a decree of cessio pronounced at an adjourned diet was reduced on the ground that the debtor had not been cited to that diet. That case would have been in point, and conclusive in the pursuer's favour, but for one distinction which seems vital. In that case the diet was continued on the crave of the petitioner, the adjourned diet was not intimated to the debtor, and he was not present or represented at it. In this case the pursuer avers that the diet was adjourned on the motion of his own agent, who attended at the adjourned diet. It is not pretended that the pursuer did not know of the adjourned diet. In these circumstances I cannot hold the case of Reid applicable, or the want of citation to this adjourned diet fatal.

It was objected that the decree of

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cessio was disconform to the requirements of the statute. The statute authorises a decree in absence when the Sheriff is satisfied that the debtor's absence is wilful. In this case the Sheriff did not find this expressly, but found in effect that he was not satisfied that the debtor's absence was not wilful. It was represented that this clumsy use of the double negative expressed only that the Sheriff was not satisfied either way, and did not know whether the absence was wilful or not. If it were necessary to adopt that construction, the decreet would be bad. The interlocutor is very strangely and unfortunately expressed, but I construe it as meaning that he was satisfied that the pursuer's absence from the meeting, which had been fixed on the motion of his own agent, was wilful, because not satisfactorily explained, and that the Sheriff-Substitute was therefore in a position to pronounce decree. Whether his opinion that the absence was wilful was well founded or the reverse, I cannot consider. I must accept the interlocutor as correct. On the whole, although the interlocutor is open to obvious criticism, I do not think that the decree is reducible on the ground of the irregularity of the proceedings.” ….

At advising—