Scottish Court of Session Decisions

The Bankruptcy and Cessio (Scotland) Act 1881 (44 and 45 Vict. cap. 22), section 9, provides—“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.”

The Debtors (Scotland) Act 1880 (43 and 44 Vict. cap. 34), section 9, sub-section 6, provides—“The expense of obtaining the decree [appointing a debtor to execute a disposition omnium bonorum], and of the disposition omnium bonorum, shall be paid out of the readiest of the funds thereby conveyed.”

Thomas Smith, coal merchant, Jedburgh, presented a petition for cessio bonorum in the Sheriff Court of Roxburghshire on 23d May 1884, praying the Court to find that he was notour bankrupt, that he was unable to pay his debts, that he was ready to surrender his whole means and estate for behoof of his creditors, and that his inability to pay his debts had arisen solely from his misfortunes and losses. He submitted a list of his creditors. Among the creditors was the Marquis of Lothian, whose agent had upon the 17th of May 1884 intimated to Smith that unless a debt of £95, 14s. 7d. due by him, and for which the Marquis of Lothian held decree which had been followed by a charge and poinding, was paid, a petition for cessio against him would be forthwith presented.

Upon the 23d May 1884 the Sheriff-Substitute pronounced the usual first deliverance, appointing the petitioner to publish a notice of his petition in the Edinburgh Gazette, to make special intimation to his creditors, and requiring him and his creditors to appear on 19th June as the day fixed for the petitioner's public examination, and the petitioner to lodge six days previous thereto a state of his affairs.

The petitioner failed to appear upon 19th June, the day appointed by the previous interlocutor, and the Sheriff-Substitute pronounced this interlocutor:—“The debtor having failed to appear in obedience to the order of Court, dated 23d May last, and the Sheriff being satisfied that such

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failure is wilful, on the application of all the compearing creditors, and on their motion, decerns the debtor Thomas Smith to execute a disposition omnium bonorum to and in favour of Alexander Sturrock, solicitor, Jedburgh,” whom he appointed trustee for behoof of Smith's creditors. Thereafter, on the trustee's application, the Sheriff-Substitute on 24th June granted a warrant to take possession of all money and moveables belonging to the debtor, and, if necessary for that purpose, to search the debtor's premises, to open lockfast places, and search his person.

Smith appealed against these interlocutors to the Sheriff.

On 22d July 1884 the Sheriff pronounced this interlocutor: — “Finds that the pursuer of the action failed to lodge in the hands of the Sheriff-Clerk, as required by the fourth section of the Statute 6 and 7 Will. IV., cap. 56, all the books, papers, and documents relating to his affairs, and failed, on the day appointed for the compearance of the creditors, to appear in Court for examination, without any sufficient cause for said failures; therefore dismisses the petition, and decerns.

Note.—This is a petition for cessio, not at the instance of a creditor, but at the instance of a debtor against his creditors. The procedure in it is regulated by the seventh section of the Debtors (Scotland) Act 1880, which imports into it the provisions and conditions of the 6 and 7 Will. IV., cap. 56, as well as those of the relative Acts of Sederunt of the Court of Session of 6th June 1839. By the seventh section of that Act of Sederunt it is provided that ‘if the debtor failed to lodge in the hands of the Sheriff-Clerk the state book and other documents required by section 4 of the statute by the time therein specified, the process shall be dismissed by the Sheriff, unless he shall be satisfied that the debtor had sufficient excuse.’ There is no doubt as to the fact of failure, and no sufficient excuse for it either was at the time or has now been stated.

The fifth section of the statute enacts that on the day ‘appointed for the compearance of the creditors the debtor shall appear in public court in presence of the Sheriff for examination as to his affairs;’ and certain provisions are made for the event of the debtor refusing to be put on oath, or to answer questions, or to subscribe his examination, all implying that he shall have appeared for the purpose of being examined. No express sanction is provided for the case of a debtor failing to appear for examination. But that he shall appear is an imperative enactment of the statute, the non-observance of which is inconsistent with further procedure under it as therein provided. The Sheriff therefore is of opinion that in such case nothing can follow but a dismissal of the action. It is like the case of a pursuer not appearing to maintain his action. In a work of practice (M'Glashan, p. 482–3, non-compearance of debtor) dismissal of the action is said to be the course followed in such case; and although the Sheriff has not been able to find any decision upon the point, he sees no other appropriate deliverance.

The action of cessio bonorum at the instance of a creditor and the proceedings therein are regulated by sections 8 and 9 of the Debtors (Scotland) Act 1880. These do not apply to the present action.

In pronouncing the interlocutor appealed from, this distinction has not been adverted to. But these later statutes are not clearly expressed, and do not appear to be carefully framed.”

The Marquis of Lothian appealed to the Court of Session, and argued that the debtor was not entitled first to commit a statutory default and then to take the benefit of it to the effect of annulling all the procedure that had taken place in the case.

The respondent argued that he had not failed to appear in “obedience to a citation,” and therefore the condition on which decree of cessio could be granted in his absence did not exist. The decree of 19th June was therefore erroneous.

At advising—