Tomkins v Cohen
| Jurisdiction | Scotland |
| Judgment Date | 20 October 1950 |
| Docket Number | No. 3. |
| Date | 20 October 1950 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Jamieson.
ProcessPetitionCompetency of reclaiming motionPetition presented to Outer HouseNo answers lodgedDecree granted by Vacation JudgeRespondent reclaiming within reclaiming days.
A partner in a firm presented a petition to the Court for dissolution of the firm, the petition being served edictally upon his copartners. No answers were lodged, and the Vacation Judge granted decree dissolving the firm. One of the petitioner's copartners having, before the expiry of the reclaiming days, enrolled a motion for review of the interlocutor granting decree, the petitioner objected to its competency on the ground that the decree granted was a decree in absence and was therefore not subject to reclaiming in ordinary form.
Held that the procedure relating to the undefended roll and to decrees in absence is a procedure peculiar to the ordinary action initiated by summons and does not apply to the entirely different procedure initiated by petition; and objection to the competency of the reclaiming motion repelled.
Robert Harkness Tomkins, a partner in the firm of J. & W. Cowan and Company, china merchants, 257 Great Western Road, Glasgow, presented a petition to the Court of Session for dissolution of the firm under section 35 (c) of the Partnership Act, 1890.1The petition set forth, inter alia, that the petitioner's copartners were serving sentences of imprisonment in Leeds, that their conduct had been such as to be prejudicial to the carrying on of the business, and that it was expedient that the partnership be dissolved. The petition was served edictally upon the petitioner's copartners, but no answers were lodged.
On 26th September 1950 the Vacation Judge (Lord Jamieson) granted decree dissolving the partnership.
On 17th October 1950 William Cohen, one of the petitioner's copartners, enrolled a motion for review of the interlocutor pronounced on 26th September 1950, and for a sist of the action to enable him to apply for a legal aid certificate.
On 20th October 1950, when the motion came before the First Division in the Single Bills, counsel for the petitioner objected to its competency on the grounds (1) that the decree was a decree in absence and was therefore not subject to reclaiming in ordinary form,2 and (2) that in any event William Cohen, not having lodged answers, was not a "party to a cause" within the meaning of Rule 271 of the Rules of Court.
LORD PRESIDENT (Cooper).This is a petition for...
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Charlotte Liston Sutherland V. The Advocate General For Scotland For And On Behalf Of The Commissioners For Her Majesty's Revenue And Customs
...and there is a clear distinction between the procedures applicable to a summons and those applicable to a petition (Tomkins v Cohen 1951 S.C.22). The Court is expressly empowered to award damages in petitions for judicial review. There is no such power conferred in the present procedure. Se......
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Reclaiming Motion In Petition (first) Drika Bvba; (second) Roger Van Craen; And (third) Nv Malu Against Clare Ramsay Giles
...aid for some purpose or other, by exercising some statutory jurisdiction or the nobile officium in a variety of matters: Tomkins v Cohen 1951 SC 22 at 23. Quoting from the Report of the Royal Commission on the Court of Session 1927 (Cmd. 2801) pp 49-50, the authors of the annotation continu......
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Creditors 59, 105 And 106 In Petition Of The Scottish Lion Insurance Company Limited V. Goodrich Corporation And Others
...provision in the Rules of Court, to determine the form of procedure which is most appropriate in the circumstances (cf Tomkins v Cohen 1951 SC 22 at page 23 per Lord Keith). In relation to unopposed petitions, Rule of Court 14.9 provides that "the court shall ... after such further procedur......