Scottish Court of Session Decisions

By the act 6 and 7 Will. IV. c. 56, entitled “an act for regulating the process of cessio bonorum in the Court of Session, and for extending the jurisdiction of Sheriffs in Scotland to such cases,” it is provided (§ 1.) that “every Sheriff within Scotland shall possess jurisdiction in processes of cessio bonorum brought before him in manner hereinafter provided, as fully as in any other action presently by law competent before him.” It is also enacted (§ 3.) that the debtor “may present to the Sheriff of the county in which he has his ordinary domicile, a petition, setting forth that he has been charged, &c., that he is unable to pay his debts, and is ready to surrender his estates for behoof of his creditors, and praying for interim protection against the execution of diligence, and for decreet of cessio bonorum; in which petition he shall insert a list of all his creditors, specifying their names and designations, and places of residence, so far as known to him.” As to the mode of citing the creditors it is provided (§ 4.) that on such petition being presented, the Sheriff shall appoint the debtor “to publish a notice in the Edinburgh Gazette, intimating that such petition has been presented, and requiring all his creditors to appear in court on a certain day, being not less than thirty days from the date of the Gazette notice; and within five days after the date of such notice, to send letters to all the creditors specified in the petition, containing a copy of the said notice (paying the postage thereof), or, in his option, to cite them in terms of law.”On 8th May, 1837, David Dalton Kennedy brought a process of cessio under the above statute before the Sheriff of Ayr, several of the creditors called, including the defender Ker, being resident in England. The requisite proceedings were gone through, and decree of cessio pronounced. Thereupon Ker, who had now come to reside in Scotland, presented a reclaiming petition, contending, 1st, that the Sheriff had no jurisdiction, and could not, under the statute, entertain processes of cessio where any of the defenders resided in England; and 2d, that supposing he had jurisdiction, the decree ought to be recalled, to the effect of allowing the re-examination of the debtor. The Sheriff refused the petition, and sustained his jurisdiction; whereupon Ker reclaimed to the Court of Session.

The Lord Ordinary on the bills (July 22, 1837) pronounced the following interlocutor and note: ^*—“Appoints the parties to give in cases on

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* “The Lord Ordinary entertains great doubt of the jurisdiction of the Sheriff in this case. It would appear that most of the creditors reside beyond the kingdom, and in other casus are not amenable to the courts of this country, except under a particular mode of establishing a jurisdiction before the Court of Session. By this act Sheriffs are to have a jurisdiction ‘as fully as in any other action presently by Jaw competent before him;' and it does not appear that § 3, which points out the Sheriff of the debtor's residence, as the inferior court to which the application is to be made, was intended to extend, or can extend his jurisdiction over English creditors or foreign, authorizing them to be cited to appear before him on the induecia; of thirty days. The learned Sheriff who has sustained his jurisdiction in this case, does so on the analogy of I Will. IV. c. 69; but it may be questioned if this be sufficient to give such extraordinary jurisdiction to a Sheriff, as in the present case, over these foreign creditors. For, when the jurisdiction of the Admiralty Court, as a separate court, was abolished and transferred to the Court of Session and to the Sheriff.courts, considering the nature of that court, having reference chiefly to foreigners, it was necessary that they should be made subject to the new jurisdiction, as, by the law of nations, they had been to the old and original jurisdiction, and accordingly this jurisdiction is expressly conferred on them. But the Lord Ordinary has great difficulty in holding that the extension of jurisdiction to maritime causes against foreigners (being chiefly those ' residing forth of Scotland,' but who may be found here on board ship, yet not domiciled even to the extent of founding jurisdiction), is alluded to in § 1 of the Cessio act, or that this section has a view to any action but those in his original and proper character of Sheriff. Neither is it at all necessary. The Court of Session is equally competent under this act to give all the relief which the Sheriff could give, and it may well have been thought reasonable in small cessios, with all the creditors on the spot, to allow the proceedings to take place before the local judge, which it would not ho reasonable, where the party had transactions of such nature and such magnitude as to constitute debts in England and foreign countries, to allow these to be disposed of by an inferior judge, when the Supreme Court is open to them. But as the point is new and doubtful, the Lord Ordinary thinks it should be disposed of deliberately, that uniformity may prevail in this matter throughout the various Sheriff Courts.”

the competency of this application against creditors who are foreigners; the cases to be given in by the first box-day, and revised and lodged by the second box-day: Grants interim protection against diligence on debts contracted prior to the 8th May last, till the said second box-day; and if the cases are then duly lodged, thereafter till the said cases are advised.”

Pleaded for Kennedy—

The statute in question being remedial is entitled to a liberal construction, so as to carry its purpose and intendment fully into effect. The general declaration in the leading enactment is, that the statutory jurisdiction shall be the same, or as ample as the Sheriff now has “in any other action presently by law competent before him.” Now the Sheriff had, prior to the passing of the Cessio act, jurisdiction over foreign debtors in maritime cases conferred on him by the 1 Will. IV. c. 69; and therefore his jurisdiction in cases of cessio ought also to extend to foreign debtors. Farther, wherever jurisdiction is conferred, the Judges enjoy by implication every power necessary to explicate the same. The present statute undoubtedly confers jurisdiction upon Sheriffs in all processes of cessio; and it is expressly conferred upon the Sheriff of the bankrupt's domicile. But jurisdiction being thus granted in the matter of cessio, which is a peculiar proceeding, containing in it nothing executorial or of the nature of an ordinary personal action, it seems to follow by legal construction that the Sheriff must have the power of explicating that jurisdiction by giving or obtaining citation in some form. Had no form of citing been prescribed, citation by letters of supplement would probably have been competent; ¹ by the act, however, an option is given to the pursuer to cite by letter or by ordinary form of law; and the mode of giving notice by letter appears to have been adopted in order to meet the

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¹ Brown v. Thomson, Jan. 28 (15), 1835, ante XIII. 352.

case of creditors being resident beyond the jurisdiction of the Sheriff, before whom the process was to be brought, whether in other counties or in England. Any more limited construction of the statute than that now contended for, would go far to frustrate its object.

Pleaded for Ker;

The Sheriff has “by law”—which must be held as referring to the common law and not to statute—no jurisdiction over foreigners, ¹ who are not to be deprived of their privilege of appearing only in the Supreme Court, unless by express enactment. The statute in question contains no provision for extending the Sheriff's jurisdiction to foreigners, and so contrasts with the 1st Will. IV. c. 69, where his jurisdiction in maritime cases is expressly extended to“persons furth of Scotland.” And were it competent to supply what the Legislature have omitted in the wording of the act, there is no evidence of intention on the part of the Legislature to justify such a construction.

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¹ See Burn v. Purvis, Dec. 13, 1828, ante VII. 194.

Ker farther alleged in his pleading, for the first time, that the names of certain English creditors had been omitted to be inserted in the petition for cessio, which he contended was fatal to the competency of the application. ²

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² Saumarez Fraser, June 30, 1837, ante XV. 1244.

The Court (Dec, 19, 1837) remitted to have the opinion of the First Division and Lords Ordinary taken as to the Sheriff's jurisdiction over foreign creditors. The following unanimous opinion was returned by the consulted Judges:—

“We are of opinion that the defender, though residing in England, was amenable to the jurisdiction of the Sheriff of Ayrshire, in the process of cessio bonorum raised by him against his creditors, under authority of the late statute, 6 and 7 Will. IV. cap. 56.

“The object of that statute was to enable debtors to bring processes of cessio before the Sheriff of their domicile (§ 3); and with that view, it is declared that Sheriffs ' shall possess jurisdiction in processes of cessio bonorum, as fully as in other actions presently by law competent before him.'

“Hence, if the process be brought competently before the Sheriff of the pursuer's domicile, the Judge has power to give an effectual decree in it, whoever may be defenders, as fully as in any other cause competent before him. The concluding words above quoted, cannot be construed as in any respect intended to restrict the jurisdiction of the Sheriff to any particular class of cessios, but rather to denote the unlimited extent of the power conferred on the Sheriff to give as effectual a decree in all processes of cessio, after the cause has been brought competently before him, as he could pronounce by law in any other cause. Besides, as there is a large class of mercantile cases (Admiralty causes) in which, by the 1st Will. IV. cap. 69, Sheriffs have an undoubted jurisdiction over foreigners, that example alone is sufficient to show, that Sheriffs ought, even under a literal construction of the above clause, to have jurisdiction in processes of cessio.

“This view of the case is confirmed by the ulterior provisions of the act, as to the citation of defenders. By section 4 of the act, there must be a notice in the Gazette, thirty days prior to the calling of the case, and intimation given to each creditor, either by letters sent through the post-office, or by ordinary citation, at the option of the pursuer. The length of the notice required, of itself affords a fair inference, that the law contemplated the probability of other parties appearing, and being defenders in the process, than those subject to the ordinary jurisdiction of the Sheriff, who may usually be cited on an induciæ of seven days;—and as foreign defenders in cessios never were rendered subject to the jurisdiction of our Supreme Court (as in ordinary actions of debt), by arrestment ad jurisdictionem fundandam, we think that they, as well as other creditors living beyond the Sheriff's jurisdiction in Scotland, are now amenable to the jurisdiction of the Sheriff, in process of cessio, either by letters of intimation sent through the post-office, or by legal citation, as the pursuer may prefer.”

The case was this day put out for advising.