BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackintyre & Others v. Mulholland [1867] ScotLR 4_73_1 (4 June 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0073_1.html Cite as: [1867] ScotLR 4_73_1, [1867] SLR 4_73_1 |
||
[New search] [Printable PDF version] [Help]
Page: 73↓
Circumstances in which a party found entitled to the benefit of cessio. Warrant of liberation granted.
Mulholland, on 2d January 1867, petitioned in the Sheriff-court of Stirlingshire for cessio. He had
Page: 74↓
been imprisoned on 30th August preceding at the instance of a creditor. Creditors opposed, on the ground (1) of the unsatisfactory and contradictory nature of the bankrupt's explanations; (2) of his concealment of funds and disposal of his property on the eve of bankruptcy, to the prejudice of his creditors. The Sheriff-substitute allowed a proof of the second objection. The creditors, however, did not lead any proof. The Sheriff-substitute found the petitioner entitled to the benefit of cessio. The Sheriff adhered.
The creditors reclaimed. The Lord Ordinary on the Bills ( Curriehill) refused the reclaiming note.
F. W. Clark for reclaiming creditors.
R. V. Campbell for respondent.
The Court adhered. They held that it was the duty of the creditors to take advantage of the allowance made to them to lead counter-proof to the petitioner's averments. They had not chosen to do this, and could not be heard now. The want of clear explanation of the bankrupt's affairs was no doubt owing to his illiterate character. Expenses were given to the petitioner since the date of the Lord Ordinary's interlocutor.
Campbell, for petitioner, craved the Court to grant a warrant of liberation, and to allow immediate extract thereof ad interim.
The
Campbell referred to M'Laurin's Forms of Process in Sheriff-courts. p. 536, as containing, in addition to the decree for cessio, the form of a warrant of liberation when the insolvent is in prison.
The Court accordingly granted the petitioner's motion.
Agent for Creditors— J. Y. Pullar, S.S.C.
Agents for Respondent— Macgregor & Barclay, S.S.C.
