Miller v John Finlay MacLeod & Parker (A Firm) [1973] ScotCS CSIH_1 (30 March 1973)

Miller v John Finlay MacLeod & Parker (A Firm) [1973] ScotCS CSIH_1 (30 March 1973)

The new partnership of John Finlay MacLeod and Parker, formed on 5th April 1958, took over the whole business and assets of MacLeod's existing business and continued on the same footing. There was no binding agreement for capital contribution and no facts sufficient to rebut the presumption that the new partnership assumed all liabilities, including the obligation to account for MacLeod's intromissions with the executry estate. The liability to account for intromissions is equivalent to a trade debt and falls within the presumption.

Citation
[1973] ScotCS CSIH_1
Parties
Pursuer: Miller; Defender: John Finlay MacLeod & Parker (A Firm); Defender: Second-named defender; Defender: Third-named defender; Defender: Fourth-named defender
Jurisdiction
Scotland
Judgment Date
30 March 1973
Procedural Posture
Appeal / Judgment on Appeal
Outcome
appeal refused
Legal Topics
Liability of New Partnership for Pre Existing Debts, Accounting for Intromissions, Presumption of Liability Upon Business Continuation
Partnership Law Solicitors' Liability Estate Administration Liability of New Partnership for Pre Existing Debts Accounting for Intromissions Presumption of Liability Upon Business Continuation

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Parties

Miller

Pursuer

John Finlay MacLeod & Parker (A Firm)

Defender

Second-named defender

Defender

Third-named defender

Defender

Fourth-named defender

Defender

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Are the first, second, and third-named defenders liable to account for the intromissions of John Finlay MacLeod prior to 5th April 1958?
  2. 2 Does the presumption of liability for pre-existing debts apply to a solicitors' firm upon partnership formation and business continuation?
  3. 3 Is the liability to account for intromissions equivalent to trade debts under partnership law?

Ratio Decidendi

The new partnership of John Finlay MacLeod and Parker, formed on 5th April 1958, took over the whole business and assets of MacLeod's existing business and continued on the same footing. There was no binding agreement for capital contribution and no facts sufficient to rebut the presumption that the new partnership assumed all liabilities, including the obligation to account for MacLeod's intromissions with the executry estate. The liability to account for intromissions is equivalent to a trade debt and falls within the presumption.

Court Disposition

appeal refused

Orders

  • Case remitted to the Sheriff to proceed as accords.
  • First, second, and third-named defenders are bound to account to the pursuer as executrix for the whole intromissions of the late John Finlay MacLeod and themselves with the executry estate of the late Richard Kearney.