Rowan & Borland v. M'Lauchlan [1905] ScotLR 42_402 (08 March 1905)
The decree of cessio was incompetent because at the time it was pronounced there was no pursuer or party legally entitled to move the process; the Sheriff-Substitute acted ex proprio motu without legal instance.
- Citation
- [1905] ScotLR 42_402
- Parties
- Petitioner: Rowan & Borland; Debtor/appellant: James M'Lauchlan; Trustee/respondent: J. E. Milligan; Creditor/respondent: William Nicholson jr.
- Jurisdiction
- Scotland
- Judgment Date
- 08 March 1905
- Procedural Posture
- Appeal / Judgment on Appeal From Sheriff Court
- Outcome
- interlocutor recalled
- Legal Topics
- Cessio Bonorum, Withdrawal of Petition, Competency of Decree, Absence of Pursuer
Case Brief
Summary, issues, holding and outcome
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Parties
Rowan & Borland
Petitioner
James M'Lauchlan
Debtor/appellant
J. E. Milligan
Trustee/respondent
William Nicholson jr.
Creditor/respondent
Procedural Posture
Appeal / Judgment on Appeal From Sheriff Court
Legal Issues
- 1 Whether the Sheriff-Substitute's decree of cessio was competent when petitioning creditors had withdrawn and no other creditors were made parties
- 2 Whether the debtor's failure to appear was wilful under section 9 of the Bankruptcy and Cessio (Scotland) Act 1881
Ratio Decidendi
The decree of cessio was incompetent because at the time it was pronounced there was no pursuer or party legally entitled to move the process; the Sheriff-Substitute acted ex proprio motu without legal instance.
Court Disposition
interlocutor recalled
Orders
- Recall the interlocutor of the Sheriff-Substitute dated 3rd February 1905
- Remit to Sheriff-Substitute to proceed of new
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