Scottish Court of Session Decisions

On 24th January 1890 the Sheriff of the Lothians granted decree of cessio against John Mackay, and appointed Mr J. J. Stewart, C.A., trustee.

On 15th October 1896 John Mackay presented this petition, setting forth that a period of more than six years had expired since decree of cessio was granted; that the petitioner was desirous of being finally discharged of all debts due by him before the date of the cessio, in terms of the 146th section of the Bankruptcy Act 1856, and the Bankruptcy and Cessio Act 1881; that a first and final dividend of 1s. 8d. in the £ had been paid; that the failure to pay 5s. in the £ had arisen from circumstances for which the petitioner was not responsible, and that owing to the death of Mr J. J. Stewart, the trustee in the cessio, on 11th September 1895, the petitioner could not obtain the requisite statutory report.

The petitioner accordingly craved the Court to remit to the Accountant of Court to furnish a report in lieu of that falling to be made by the trustee, and further stated—“The petitioner is unable to obtain such a report under a petition for his discharge presented in the said Sheriff Court. According to the practice in said Sheriff Court the acceptance of such a report in lieu of a statutory report by the trustee involves an exercise of the nobile officium competent only to your Lordships.”

The prayer of the petition embraced three heads—(1) To remit to the Accountant for the purpose above mentioned; (2) On such report being lodged, to accept it in place of, and to declare it equivalent to, the trustee's statutory report; and (3) to remit to the Sheriff of the Lothians to appoint intimation of the petition by advertisement and circular to the creditors, and thereupon, after the usual procedure, to pronounce a deliverance discharging the petitioner of all debts and obligations contracted by him prior to the cessio.

The Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. c. 79), sec. 146, enacts “that a bankrupt may petition to be finally discharged on the expiration of two years from the date of the sequestration without any consents of creditors, provided that it shall not be competent for him to present such petition “until the trustee shall have prepared a report with regard to the conduct of the bankrupt, and as to how far he has complied with the provisions of this Act, and, in particular, whether the bankrupt has made a fair discovery and surrender of his estate, and whether he has attended the diets of examination, and whether he has been guilty of any collusion, and whether his bankruptcy has arisen from innocent misfortune or losses in business, or from culpable or undue conduct.”

The Bankruptcy and Cessio (Scotland) Act 1881 (44 and 45 Vict. c. 22), sec. 5, enacts that “A debtor, with respect to whom a decree of cessio bonorum has been pronounced, shall be entitled, on the expiration of six months from the date of such decree, to apply to the Sheriff to be finally discharged of all debts contracted by him before the date of such decree; and the provisions of the 146th section of the Bankruptcy (Scotland) Act 1856, with regard to the conditions on which a bankrupt shall be entitled to obtain his discharge on the expiration of … two years … from the date of sequestration, shall … apply to debtors with respect to whom decree of cessio bonorum has been pronounced.

The Accountant of Court, in obedience to a remit from the Court, reported, inter alia, that the petitioner had made a fair discovery and surrender of his estate; that he had attended the diet of examination; that he had not been guilty of collusion, and that his bankruptcy had arisen from innocent misfortune or losses in business, and not from culpable or undue conduct.

Thereafter in the Single Bills the petitioner cited the case of White, March 18, 1893, 20 R. 600.