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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Learmonth v Dawson [1838] CS 16_1144 (16 June 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS1144.html Cite as: [1838] CS 16_1144 |
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Page: 1144↓
Subject_Ranking and Sale—Bankrupt—Process.—
Where separate lots were bought by two separate purchasers at a ranking and sale, held that one petition for exoneration could not be presented in name of both, but that each purchaser must present a separate petition; although the purchases were made on the same day, the decreet of sale as to the whole was pronounced on the same day, and the prices were consigned also on the same day.
In the ranking and sale of Parkhall, four lots of minerals were separately exposed to sale. John Livingston Learmonth bought the first lot for £105, and found the requisite caution. The Carron Company bought the other three lots for sums amounting in all to £8320, and also found caution, the cautioner being a different person from the cautioner for Learmonth. Decreet of sale, of date July 11, 1837, was pronounced in favour of these parties. On May 15, 1838, they consigned the prices due by them respectively, and they then presented one petition to the Court stating these circumstances, and praying the Court “to exoner and discharge the petitioners, and their cautioners respectively, of the said prices, and to grant warrant to, and authorize and ordain the clerks of Court to deliver up the bonds of caution of the petitioners for the prices of the said lots, purchased by them respectively.”
The clerks of Court called the attention of their Lordships to the novel form of this petition, as it was the invariable practice of the Court, where there were distinct lots, judicially sold to separate purchasers, to require a separate petition for each purchaser.
Ivory, for the Petitioners, submitted that there was no intelligible interest which could be stated against the competency and expediency of combining two parties, situated like these petitioners, in one petition.
The other Judges assented; but, on the motion of the Carron Company, sustained the petition, as an effectual petition at their instance, and refused it so far as regarded the co-petitioner, John Livingstons Learmonth.
Solicitors: Gibson-Craigs, Wardlaw, and Dalziel, W.S.—Agents.
