Cook v. M'Dougall [1922] ScotLR 60 (04 November 1922)

Cook v. M'Dougall [1922] ScotLR 60 (04 November 1922)

Section 16 of the Bankruptcy (Scotland) Act 1913 does not preclude a second sequestration in the same court where the first sequestration remains undischarged; its purpose is to prevent concurrent sequestrations in different courts, not to bar new sequestrations in the same jurisdiction. New creditors are entitled to seek sequestration for debts incurred after the first sequestration.

Citation
[1922] ScotLR 60
Parties
Pursuer/appellant: James Cook; Defender/respondent: William M'Dougall
Jurisdiction
Scotland
Judgment Date
04 November 1922
Procedural Posture
Bankruptcy Petition (sequestration) Appeal / Appeal From Sheriff Substitute to Inner House, Second Division
Outcome
appeal allowed
Legal Topics
Sequestration, Second Sequestration, Bankruptcy (scotland) Act 1913 Section 16, Jurisdictional Bar, Creditor Rights
Bankruptcy Insolvency Sequestration Second Sequestration Bankruptcy (scotland) Act 1913 Section 16 Jurisdictional Bar Creditor Rights

Case Brief

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Parties

James Cook

Pursuer/appellant

William M'Dougall

Defender/respondent

Procedural Posture

Bankruptcy Petition (sequestration) Appeal / Appeal From Sheriff Substitute to Inner House, Second Division

Legal Issues

  1. 1 Does section 16 of the Bankruptcy (Scotland) Act 1913 bar a second sequestration in the same court where the first sequestration remains undischarged?
  2. 2 Are new creditors entitled to a second sequestration where the bankrupt has incurred new debts after the first sequestration?

Ratio Decidendi

Section 16 of the Bankruptcy (Scotland) Act 1913 does not preclude a second sequestration in the same court where the first sequestration remains undischarged; its purpose is to prevent concurrent sequestrations in different courts, not to bar new sequestrations in the same jurisdiction. New creditors are entitled to seek sequestration for debts incurred after the first sequestration.

Court Disposition

appeal allowed

Orders

  • interlocutor appealed against recalled
  • case remitted to Sheriff-Substitute to award sequestration