The dyvour's habit cannot be dispensed with, where the man who has obtained a cessio, has become bankrupt by smuggling.
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By act of Sederunt, 18th July 1688, it is declared, that the dyvours habit is not to be dispensed with, except in the case of innocent misfortune, liquidly libelled. And, by act 5th, Parl. 1696, the Court is discharged to dispense with the habit, unless the bankrupt's failing through misfortune, be libelled, proved, and sustained. In a cessio bonorum, the pursuer condescending that he became insolvent by smuggling; and craving to have the habit dispensed with, without a proof, because the fact was well known to his creditors, who made no opposition; it occurred to the Lords, that a bankruptcy occasioned by smuggling, is far from being an innocent misfortune; and, upon that medium, they refused to dispense with the habit. They did the like, 6th December 1768, in a cessio bonorum, John Creighton contra His Creditors. See Appendix.
Fol. Dic. v. 4. p. 138. Sel. Dec. No. 2. p. 3.*** This case is reported in the Faculty Collection:
John Drysdale, a merchant, became bankrupt, and being laid in prison for debt, he brought a cessio bonorum. His creditors did not oppose him, neither did they make any objection to the condescendence of losses given in by him, or to the honesty of his character: But a doubt being moved by the Court, whether his wearing the dyvour's habit could be dispensed with, unless he should bring a proof of his losses; he was allowed to bring a proof of the verity of the condescendence; upon which, he applied to the Court, setting forth, that his insolvency was chiefly occasoned by seizures of his smuggled goods; but that if a proof of this was required, the Court could not expect a very accurate one, because dealers in smuggled goods use so much art to conceal their property in such goods, that it becomes next to impossible to prove their property. However, upon the footing that his allegations were true, he hoped, his concern in smuggling would not alone be a sufficient reason for refusing to him, what was never refused to any bankrupt, where the creditors did not, upon just suspicion of fraud, insist on a strict interpretation of the act of 1696, William, Sess. 6. cap. 5. That this was the more reasonable, as he produced certificates of an honest character in other respects.
The Lords were of opinion, that seeing the losses were occasioned by so pernicious a practice, they could not dispense with the strictest interpretation of the act of Parliament.
“They refused to dispense with the habit.”
Act. And. Pringle.Clerk, Kirkpatrick.
Fac. Col. No 4. p. 7.*** Kilkerran also reports this case:
In the cessio bonorum pursued by the said Drysdale, the Lords refused to dispense with the habit, in respect, the losses in trade, condescended on by him, were losses in the smuggling trade, which could not be considered as an innocent misfortune.
