Central Motor Engineering Co. and Others v. Gibbs and Others [1918] ScotLR 702 (26 June 1918)

Central Motor Engineering Co. and Others v. Gibbs and Others [1918] ScotLR 702 (26 June 1918)

The action for reduction of the sequestration award is incompetent where the statutory remedy of recall is available and has not been pursued; even if competent, the grounds advanced are irrelevant as the statutory requirements for citation were met under section 26, and any technical defect in the affidavit does not justify reduction after significant delay and absence of prejudice. The pursuers are personally barred by mora and acquiescence.

Citation
[1918] ScotLR 702
Parties
Pursuer: Central Motor Engineering Company; Pursuer: Gordon Houston-Boswall-Preston; Pursuer: Alistair Houston-Boswall-Preston; Defender: William Brodie Galbraith, C.A.; Defender: Anglo-American Oil Company Limited; Defender: Mrs Euphemia Constance Gibbs; Defender: Antony Edmund Gibbs; Defender: Scottish Amicable Life Assurance Society
Jurisdiction
Scotland
Judgment Date
26 June 1918
Procedural Posture
Civil / Appeal (reclaiming Motion) From Dismissal at First Instance
Outcome
action dismissed
Legal Topics
Sequestration, Reduction of Sequestration, Citation of Partners, Principal Officer Affidavit, Statutory Remedies, Personal Bar, Title to Sue/defend
Bankruptcy Civil Procedure Trusts and Succession Sequestration Reduction of Sequestration Citation of Partners Principal Officer Affidavit Statutory Remedies +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 16 Party arguments 2 Amounts and remedies 8
Sign in to unlock

Parties

Central Motor Engineering Company

Pursuer

Gordon Houston-Boswall-Preston

Pursuer

Alistair Houston-Boswall-Preston

Pursuer

William Brodie Galbraith, C.A.

Defender

Anglo-American Oil Company Limited

Defender

Mrs Euphemia Constance Gibbs

Defender

Antony Edmund Gibbs

Defender

Scottish Amicable Life Assurance Society

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Dismissal at First Instance

Legal Issues

  1. 1 Is an action of reduction of an award of sequestration competent under the Bankruptcy (Scotland) Act 1913?
  2. 2 Was edictal citation of individual partners required under section 25 of the 1913 Act when they were furth of Scotland?
  3. 3 Was the affidavit by the petitioning creditor valid under section 24 of the 1913 Act?

Ratio Decidendi

The action for reduction of the sequestration award is incompetent where the statutory remedy of recall is available and has not been pursued; even if competent, the grounds advanced are irrelevant as the statutory requirements for citation were met under section 26, and any technical defect in the affidavit does not justify reduction after significant delay and absence of prejudice. The pursuers are personally barred by mora and acquiescence.

Court Disposition

action dismissed

Orders

  • Action for reduction of sequestration dismissed.
  • No decree of reduction granted.