Mr Andrew Dickson, v. The Representatives of Mitchel of Alderston
Date: 3 December 1751 Case No. No 6.
A debtor, who had retired to the Abbey, found to have incurred bankruptcy, although not booked.
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James Somervell held his estate of Castle-Somervell of John Mitchel of Alderston; and, being also his debtor, disponed the same to him 4th May 1720, as for a price paid: To which disposition it was objected, in the ranking of his creditors, that he was at the time bankrupt, in terms of the statute 1696.
It was proved, Mr Somervell left his country-house about Mid-summer that year, before resignation upon the disposition; and took lodgings in the Abbey: That he used to leave the Abbey late on Saturday night, at which time he avoided being seen, and returned on Sunday night: That he lived there a considerable time; but was not marked in the clerk's book of those who had taken sanctuary.
The bailie depute of the Abbey deponed he had heard the former clerk used sometimes not to mark in his book, people who had taken sanctuary, that he might sink the fees paid to him on that score, for which he was accountable to the bailie.
The Lords were generally opinion, it was not necessary to bring a man under the qualifications of the act, that he should be marked in the clerk's book.
They found it proven, that James Somervell was notour bankrupt. (See Bankrupt.)
Reporter, Lord Murkle.Act. H. Home.Alt. Lockhart.Clerk, Justice.
Fol. Dic. v. 4. p. 260. D. Falconer, vol. 2. p. 292.
