Scottish Court of Session Decisions

A petition for cessio bonorum was presented in the Sheriff Court of Ayrshire. There was no condescendence or pleas-in-law appended. The Sheriff ( Campbell), holding that the petition was for that reason incompetent, dismissed it. He added the following note to his interlocutor:—

“ Note.—The objection which has been sustained is founded on the 6th section of the Sheriff Courts Act of 1876, which provides that every action in the ordinary ‘Sheriff Court shall be commenced by a petition in one of the forms as nearly as may be contained in Schedule A, annexed to this Act.’

Now, in the first place, there is no doubt that the petition in question is not framed in the terms prescribed by that Act; and

In the second place, it is clear that the words of the Act are imperative.

The only question therefore is, whether the words above quoted, viz., every action in the ordinary Sheriff Court, embraces actions of cessio; and if they do, this action has been rightly dismissed.

The Sheriff is of opinion that the process of cessio is an action in the ordinary Sheriff Court within the meaning of the statute.

1st, The title to the Act proposes to deal with the administration of justice only in civil causes in the ordinary Sheriff Courts of Scotland.’

2dly, Section 2d enacts that, ‘unless where otherwise provided, this Act shall only apply to civil processes in the ordinary Sheriff Court.’ “3dly, In the interpretation clause (sec. 3) the word ‘action’ is interpreted to mean and ‘include every civil proceeding competent in the ordinary Sheriff Court.’ And this is held to include all summary actions as well as ordinary ones ( M'Dermott v. Ramsay, 9th December 1876, 4 Rettie 217).

But it is said that this process of cessio is a special kind of action, and not to be dealt with as ‘a civil proceeding in the ordinary Sheriff Court.’

Page: 631↓

This view, however, is not countenanced by the Act; under the express heading of ‘special actions, ’ are classed ‘multiplepoindings’ and ‘processes of cessio.’

But there can be no doubt that one of these classes, viz. ‘multiplepoindings, ’ is within the 6th section of the statute, for one of the forms given in Schedule A is expressly applicable to multiplepoindings.

The fact, therefore, of processes of multiplepoinding and cessio being classed as special actions ‘does not exclude them from the operation of the 6th section of the Act, and does not in the least imply that they are not to be deemed actions in the ordinary Sheriff Court.’ Indeed, the 26th section of the Act provides that ‘ cessios shall be instituted in the Sheriff Court only, ’—that is, the ordinary Sheriff Court. For then follows this provision, that ‘judgments or interlocutors pronounced in such actions shall be reviewed on appeal in the same form, and subject to the like provisions, restrictions, and conditions as are by law provided in regard to appeal against any judgment or interlocutor pronounced in any other action in the Sheriff ordinary Court.’ This simply implies that cessios are actions in the Sheriff ordinary Courts. And if so, they must come into Court in the form prescribed for other actions in the ordinary Sheriff Court.

The 2d head of the 26th section of the Act does not deal with the form of the action at all. It refers to the 6th and 7th Will. IV. c. 56, which contains no form of petition, and all that Act requires may be as well, if not better, stated in the new form of petition than in the old and discarded one.

In conclusion, the Sheriff would refer, in corroboration of his views, to the observations of the Lord President in the case of M'Dermott above mentioned.”

The petitioner reclaimed.

The respondent was not called upon.

At advising—