What proof admitted of knowledge, that a person dealt with was bankrupt?
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William Paterson being cautioner, acted in the books of Burrows for Hector Paterson, who was admitted a Flemish factor for Scots merchants, after sentence obtained before the Lords, by John Ritchie, merchant burgess of Edinburgh, against the said Hector, for payment of a sum indebted to him for certain merchandise, conform to his merchant-count, with the annualrent thereof, since the sum was due to be paid, which decreet was given against him in absence; the said John Ritchie pursues the said cautioner, for payment of the said sum and annualrents, wherein the cautioner compeared, and alleged, That this action, betwixt merchant and factor, should be pursued before the conservator, conform to the act of Parliament, Ja. IV. Parl. 6. cap. 81. This allegeance was repelled; and the Lords found, that this, and the like pursuits may be pursued before the Lords of Session; for by that act it was only statuted, that such pursuits should be pursued before no other Judges out of the realm, but the conservator; and also the Lords found, that the cautioner was not subject to pay annualrent for the money indebted by the factor, albeit the factor himself was decerned therein, as said is, he being absent and bankrupt.
Act. Miller.Alt. Trotter.Clerk, Gibson.
1630. March 4.—It being alleged by the cautioner for the factor, that the pursuer was in mala fide to send any wares out of Scotland to Flanders to the factor, and thereby to make the cautioner liable therefor; for the pursuit was for the price of the wares sent to the factor by the pursuer, and for which decreet was given against the factor before, because the said factor was a notour bankrupt before the sending away of the said wares, and was so known to the pursuer himself; so that this being known to him, the cautioner ought not to be answerable to him therefor; this allegeance of the pursuer's knowledge was found only probable by writ, or the pursuer's oath, and not by those who were alleged to have intimated and signified it to the pursuer, before the sending away of the wares, that he was bankrupt.
