Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Dumfries-shire in an application by Robert Donaldson, joiner, Lockerbie, for the benefit of Cessio Bonorum.

A state of affairs under the statute was made by the petitioner and signed by him on 11th October 1872, in a note to which he stated that his wife was proprietrix of a house in Lockerbie presently occupied by him. This property was purchased at the price of £200 from the Lockerbie Building Society in or about the year 1867. When the purchase was effected only £50 of the purchase money was paid, a bond being then granted to the society for the remaining £150. The portion of the purchase-money actually paid was advanced by the petitioner's wife and daughter, who had saved that sum in keeping lodgers in the house, and it was intended that on this account the conveyance should be taken in name of his wife. By an oversight, however, this was not done, but it was taken to the petitioner, and the property remained in the petitioner's name down till March 1871, when, in conformity with the original arrangement,

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he conveyed it to his wife, still subject to the bond for £150. At and prior to the date of the conveyance to his wife, the petitioner was not only solvent, but was more than able to meet his liabilities.

The petitioner was examined in the process of cessio on 18th October 1872, and in the course of his examination refused to sign a deed of revocation of the disposition conveying the above mentioned property to his wife. In consequence of this refusal Messrs Thomson & Co., creditors on his estate, objected to the granting of the cessio.

The petitioner answered that this was not an objection that fell to be considered under the statute, and further that the pursuer was not bound to sign such a deed.

On the 31st October 1872, the Sheriff-Substitute ( Hope) pronounced the following interlocutor:—“Having considered the examination of the pursuer on oath, the pursuer's state of affairs, the note of objections for the opposing creditors, and answers thereto, and whole process, and debate thereon—Refuses to grant the petitioner the benefit of the process of cessio bonorum in hoc statu, for the reasons stated in the subjoined note.

“ Note.—The ground of objection to the granting of this application is one which falls to be disposed of according to the discretion of the Court. The Sheriff-Substitute has carefully considered the decisions in analogous cases, and all that was advanced for the pursuer against their applicability; and, on the whole, he thinks that the pursuer ought to revoke the conveyance to his wife before obtaining a decree in his favour. He can do so if he likes, but he will not. His motive may be a praiseworthy one as regards his wife, but the Sheriff-Substitute thinks that the creditors are entitled to some of his consideration too. The explanation of the transaction given in the state of affairs is not very satisfactory, and the circumstances are not free from suspicion, but the Sheriff-Substitute does not think it necessary to order further inquiry, as the objection is not based upon any alleged intention to defraud.”

The petitioner appealed by reclaiming petition, and after answers the Sheriff ( Napier), on 16th December 1872, pronounced the following interlocutor:—Finds, first, in point of fact, that it neither appears from anything in the process before the Sheriff, nor is it alleged by any of the opposing creditors as a reason for refusing this petition for the benefit of cessio bonorum, that the pursuer of it is in mala fide in any respect as regards the state of his affairs or the management of his funds: Therefore, under the whole circumstances of the case, finds, in point of law and equity, that the pursuer's declining to revoke the conveyance in question to his wife as a condition precedent to obtaining his cessio, is not a sufficient reason for refusing it: Therefore recalls the interlocutor appealed against: Finds the pursuer entitled to the benefit of the process of cessio bonorum; and with these findings in fact and law, remits the case back to the Sheriff-Substitute to proceed accordingly.”

In pursuance of this interlocutor the Sheriff—Substitute, on 30th December 1872, granted the benefit of the process of cessio bonorum to the pursuer.

The creditors (objectors) appealed to the First Division of the Court of Session, and argued that although a husband may give his wife a reasonable provision, he is not entitled to dispone to her a property for her benefit—the fortunes of a wife must follow those of her husband.

Authorities relied on—I. L. R., Scotch Appeals, 109; Rust v. Smith, 3 Macpherson, 378; Dunlop, 3 Macpherson, 758; Ersk. Inst., 1, 6, 30.

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