J. & W. Kinnes v. Adam & Sons

Subject_1 Reparation Subject_2 Diligence Subject_3 Wrongous Use of Diligence Subject_4 Sequestration — Relevancy — Malice and Want of Probable Cause.

Process — Partnership — Title to Sue. Facts: A petition for sequestration, though it may result in diligence, is not itself a diligence, but an action in which the alleged debtor may appear to oppose sequestration. In an action of damages for a wrongful application for sequestration it is therefore necessary to aver malice and want of probable cause; and in consequence of a mere technical error in an application for sequestration an action of damages for wrongous use of diligence will not lie.

Where one of two partners of a firm raises an action in name of the firm, and the other disclaims the action— question , Whether the partner raising the action has a title to sue?

On 3d August 1881 John Adam & Sons, plasterers in Dundee, presented in the Sheriff Court of Forfarshire a petition for sequestration of the estates of J. & W. Kinnes, ironmongers and plumbers there, and of the estates of James Kinnes and William Kinnes, the individual partners of that firm. Adam & Sons were creditors of the firm to the extent of £500, and at the date of its presentation the firm of J. & W. Kinnes was notour bankrupt, having been made so within four months previous to the presentment of the petition.

The oath lodged by the petitioners duly set forth the amount of the debt due to them, and that they held a security for their debt. To that security it stated no value was attached. It did not state that the petitioners held no other security for the sum. The Bankruptcy (Scotland) Act of 1856 provides by section 22 that the petitioning creditor shall in his oath specify any security he holds and “depone that he holds no other obligants or securities than those specified.”