Scottish Court of Session Decisions

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Cite as: [1838] CS 16_1129

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SCOTTISH_Court_of_Session_Shaw

Page: 1129↓

016SS1129

A B

v.

A B's Creditors
No. 207

Court of Session

1st Division

June 9 1838

Lord President.

A B, Pursuer.— Counsel:
Pyper. A B's Creditors, Defenders.— Counsel:
Penney.

Subject_Cessio—Expenses.— Headnote:

Held that creditors, opposing a cessio in which a proof has been led, must print the proof for the Court in the first instance; reserving the ultimate liability for that expense for after consideration.

Facts:

In a process of cessio, a proof was taken under a remit to the Sheriff, and it was now moved by the pursuer that the expense of printing the proof should be borne by the creditors, as the pursuer would otherwise be practically barred from pursuing his cessio, being unable to supply the requisite funds for printing. The defenders answered that the onus lay, in the mean-time, on the pursuer to prove his case, which he could only do by printing the proof, and submitting it to the Court in common form. After that was done, if it appeared that opposition had been improperly made by the creditors, the Court could then lay the expenses on them; but this should not be done in the first instance.

Lord President.—Unless the creditors print the proof, and put the Court in possession of the grounds of their opposition, we shall presume that the misfortunes of the bankrupt have been innocently incurred, and find him entitled to the benefit of the cessio. The creditors must bear the expense in the first instance, and the Court will decide afterwards on which party it must ultimately be laid. But unless the creditors print the proof, there will be nothing before the Court to prevent the pursuer from obtaining decree.

Held, accordingly, that the proof should be printed by the creditors.

Solicitors: —Agents.

SS 16 SS 1129 1838

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