Harvie v. Smith [1908] ScotLR 387 (18 January 1908)

Harvie v. Smith [1908] ScotLR 387 (18 January 1908)

An expired charge for a sum of expenses contained in a decree is good evidence of notour bankruptcy under the Debtors (Scotland) Act 1880, section 6, even if imprisonment for the debt was already incompetent under an earlier statute. The 1880 Act applies to all cases where imprisonment is incompetent, and the sum charged here is not within the scope of the 1835 Act's prohibition.

Citation
[1908] ScotLR 387
Parties
Petitioner: Marion Harvie of Little Auchengree, Dairy, Ayrshire; Defender: William Smith
Jurisdiction
Scotland
Judgment Date
18 January 1908
Procedural Posture
Petition for Cessio (bankruptcy) / Appeal From Sheriff Court to Court of Session Inner House, First Division
Outcome
appeal refused
Legal Topics
Notour Bankruptcy, Constitution of Notour Bankruptcy, Expired Charge, Imprisonment for Debt, Statutory Interpretation
Bankruptcy Civil Procedure Notour Bankruptcy Constitution of Notour Bankruptcy Expired Charge Imprisonment for Debt Statutory Interpretation

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Parties

Marion Harvie of Little Auchengree, Dairy, Ayrshire

Petitioner

William Smith

Defender

Procedural Posture

Petition for Cessio (bankruptcy) / Appeal From Sheriff Court to Court of Session Inner House, First Division

Legal Issues

  1. 1 Whether an expired charge for expenses alone can constitute notour bankruptcy under the Debtors (Scotland) Act 1880, section 6
  2. 2 Whether the 1880 Act applies where imprisonment was already incompetent under the Small Debts (Scotland) Act 1835

Ratio Decidendi

An expired charge for a sum of expenses contained in a decree is good evidence of notour bankruptcy under the Debtors (Scotland) Act 1880, section 6, even if imprisonment for the debt was already incompetent under an earlier statute. The 1880 Act applies to all cases where imprisonment is incompetent, and the sum charged here is not within the scope of the 1835 Act's prohibition.

Court Disposition

appeal refused

Orders

  • petition for cessio granted
  • interlocutors of the Sheriff and Sheriff-Substitute affirmed