Mackenzie, Wilson, and Others, Creditors of Forrester, Complainers
Date: 23 December 1747 Case No. No. 11.
Whether a summary application be competent in the case of fraudulent bankruptcy?
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Robert Forrester, having for some years carried on a small trade in the pedlar way, between Glasgow and England, introduced by degrees a younger brother George, who found means to purchase, upon credit, large parcels from several different merchants, who knew not what trust others had given; and having gone to England, he broke with the full hand.
The two brothers having thereafter returned to Glasgow, George proposed a composition at 7s. or 8s. per pound, for which Robert, the eldest brother, was willing to become bound. But by this time, the merchants having ground to suspect, that Robert had been in the concert with George to cheat them, set forth the circumstances of their suspicion to certain Justices of the Peace, and obtained their warrant to apprehend both George and Robert; and the Justices, after examining them, committed both to prison.
Of this procedure of the Justices, Robert complained by a bill of suspension and liberation.
It appeared to be the opinion of the Court, that it was a matter not within the province of the Justices of the Peace. And it is uncertain what judgment the Lords would have given, had not the complainer's procurator come to the bar, after the Ordinary had reported the bill, and, not knowing what had been said by the Lords, offered caution judicio sisti, which superseded the entering farther on the question as to the legality of the proceedings of the Justices; and accordingly the bill was passed on finding caution judicio sisti; but as the penalty was made much higher than the complainer had expected, no less than £.500 Sterling, and as he was unable to find caution for so great a sum, he remained in prison.
And now an application being made to the Lords, setting forth the circumstances of suspicison of fraudulent bankruptcy, and craving a warrant to transmit the prisoners from the tolbooth of Glasgow to the tolbooth of Edinbrugh, a doubt was stirred how far such warrant could be granted on a summary complaint for fraudulent bankruptcy without a process. Some instances were indeed given, where the like had been granted, as in the case of Philip Peck, and that of Joseph Cave, but whether or not there were processes in these cases could not with certainty be said.
But be that as it will, here is a precedent for it; for the Lords, upon this application, “granted warrant to transmit the prisoners to the tolbooth of Edinburgh.
