Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Creditors of Thomson
v.
Tabor Competing

Date: 12 December 1764

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An English merchant became bankrupt, having many debtors in Scotland, who owed him money by bills payable in Scotland, and by open accounts. A statute of bankruptcy was taken against him ; but before the assignation to the assignees under the commission, but after the first act of bankruptcy, his creditors, both Scotch and English, arrested in the hands of the debtors before mentioned ; and the question now came betwixt the assignees and those arresters,—the assignees contending that the whole effects of the bankrupt were vested in them retro from the first act of bankruptcy ; the arresters, on the other hand, maintaining that, by the diligence of the law of Scotland, they were preferable.

1762. February 23.—The Lords first determined the general question, Whether the assignees had any right at all in their persons, and were entitled to uplift subjects in Scotland though there had been no creditor in competition with them ? And it carried unanimously that they had right; but Lord Coalston said, that, if the point had been entire and not fixed by the decisions of the Court, he would have been of another opinion.

The next question was, Whether they were preferable to the arresters ? And it carried by a considerable majority that they were not; and the Lords on that side seemed to put their opinion upon the general point, that no assignation under the commission of bankruptcy can compete with an arrestment of a particular debt in Scotland, without distinction whether the creditor or debtor be Scots or Englishman, or the debt a Scots or English debt; and the principle upon which they went was, that a debt or nomen has a situm, not where the creditor but where the debtor resides ;—so that they can only be affected by the act of the law of that country.

This decision was contrary to the former practice, particularly the decision in the case of Wilson's Creditors, July 7th 1758.*

1764. December 12.—The Lords at first preferred both the Scotch and the English creditors-arresters; and with respect to the Scotch arresters the assignees acquiesced, but with respect to the preference of the English arresters they reclaimed; upon which the Lords appointed a hearing, then memorials, and this day the cause was determined in favour of the arresters by no great majority ;—dissent. Preside ; Alemore non liquet.

1764. December 18. The question to-day was concerning the validity of the arrestments, to which the assignees under the commission of bankruptcy objected, that part of them were laid on upon a depending process against Tabor and Thomson, the bankrupts, and who are foreigners in this country, without an arrestment jurisdictionis fundandæ causa, by which only they could have a forum competens in this country ; and part of them were laid on upon bills drawn by the bankrupts and protested here for not-acceptance, upon which protests letters of horning were raised. And the whole argument turned upon this, Whether the form of arrestment, jurisdictionis fundandœ causa, was necessary in order to give a jurisdiction over a stranger who had effects in this country?

The opinion that an arrestment jurisdictionis fundandæ causa was necessary, prevailed by no great majority; adhering to the judgment 23d February 1762.

See inter eosdem, Fac. Coll., 5th March 1767.

* This case was omitted of its date, but will be found at the end of this collection.