Cumpstie v Waterston
| Jurisdiction | Scotland |
| Judgment Date | 28 October 1932 |
| Docket Number | No. 1. |
| Date | 28 October 1932 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Company—Winding-up—Settlement of list of contributories—Enforcement of calls—Appeal against decision of Lord Ordinary—Provisions in Companies Act, 1929, limiting time for reclaiming—Whether affected by provisions of Court of Session Act, 1868—Companies Act, 1929 (19 and 20 Geo. V. cap. 23), secs. 222 and 224—Court of Session Act, 1868 (31 and 32 Vict. cap. 100), secs. 52 and 94.
Company—Winding-up—Enforcement of calls on contributories—Appeal against order of Lord Ordinary—Whether limited to suspension—Whether reclaiming note competent—Companies Act, 1929 (19 and 20 Geo. V. cap. 23), sec. 222 (2).
Process—Reclaiming—Effect of reclaiming note in bringing prior interlocutor under review—Court of Session Act, 1868 (31 and 32 Vict. cap. 100), sec. 52—Companies Act, 1929 (19 and 20 Geo. V. cap. 23), sec. 224.
The Companies Act, 1929, provides, by sec. 222, subsec. (1), that in a winding-up by the Court it shall be competent for the Court to pronounce decree against contributories for payment of the sums certified to be due by them; and, by subsec. (2), that such decree may be extracted immediately, and no suspension thereof shall be competent except on caution or consignation unless with the leave of the Court. Sec. 224 provides that, with certain specified exceptions, orders pronounced by the permanent Lord Ordinary, or, in vacation, by the Lord Ordinary on the Bills, shall be reviewable "only by reclaiming note in common form, presented within fourteen days."
The Court of Session Act, 1868, provides, by sec. 52, that every reclaiming note shall have the effect of submitting to review the whole of the prior interlocutors of the Lord Ordinary; and, by sec. 94, that an interlocutor signed in vacation prior to the first box day may be reclaimed against on the second box day.
Held that the enactment in sec. 224 of the Act of 1929 with regard to the limit of fourteen days for reclaiming was imperative, and that an order pronounced by the permanent Lord Ordinary in vacation in a winding-up and dated prior to the first box day could not competently be reclaimed against on the second box day, not-withstanding the provisions of sec. 94 of the Court of Session Act, 1868, if by that date the fourteen days had expired; and further, that this order, having thus become final, was not reviewable in virtue of sec. 52 of the Act of 1868 under a reclaiming note competently presented against a subsequent order in the winding-up.
Opinions reserved on the question whether an order for payment of calls was reviewable only by way of suspension under sec. 222 of the 1929 Act, and not by reclaiming note.
On 12th February 1932 an interlocutor was pronounced by the Lord Ordinary officiating on the Bills, ordering the Piershill Picture Theatre Company, Limited, to be wound up by the Court under the provisions of the Companies Act, 1929,1 and on 8th March 1932 the Second Division remitted the winding-up to Lord Fleming, with a direction that all subsequent proceedings therein should proceed before him.
Thereafter the liquidator, J. H. Waterston, C.A., presented a note to Lord Fleming craving his Lordship to settle the list of contributories, in which was included the name of Richard Cumpstie, builder, Dalkeith, as the holder of 1000 shares in the company, and he asked for decree against Cumpstie for a sum of £750, in respect of calls on these shares which had been in arrear since December 1929. On 25th July 1932 Lord Fleming, who had heard counsel on the last day of the previous summer session, pronounced an interlocutor by which he settled the list of contributories, and decerned against Cumpstie for payment of the sum in question.
On 2nd September 1932 the Lord Ordinary officiating on the Bills in vacation (Blackburn), after consideration of a note by the liquidator, made a call on each of the contributories (including Cumpstie) named in list "A" annexed to the note, to the extent of 5s. per share, representing the whole uncalled liability on their respective shares.
On 22nd September 1932, the second box-day of the autumn vacation, Cumpstie presented a reclaiming note to the Second
Division, in which he sought to bring under review both of these interlocutors.2On 28th October 1932, when the case was called in the Second Division (without Lord Hunter), counsel for the liquidator objected to the competency of the reclaiming note as regarded both interlocutors.
LORD JUSTICE-CLERK (Alness).—This reclaiming note essays to bring under review two interlocutors, the first of which was pronounced by Lord Fleming on 25th July 1932, being an interlocutor pronounced by him as the judge to whom the liquidation in question had been remitted by this Division, and the second an interlocutor by the Lord Ordinary officiating on the Bills, dated 2nd September 1932. An objection has been taken by the respondent to the competency of the reclaiming note, and we have now to decide that question.
The first objection taken to the reclaiming note relates to the interlocutor
of Lord Fleming, dated 25th July. The objection is of this character. It is alleged by the respondent that that reclaiming note is out of time, the argument being that section 224 of the Companies Act, 1929, specifically requires that such an interlocutor should be reclaimed against within fourteen days. It is not disputed that, if that be so, the reclaiming note which was taken was too late, being outside the period of fourteen...To continue reading
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