Decisions upon the act 5th Parliament 1696, declaring Notour Bankrupts.
Subject_3 SECT. I.
Circumstances which infer Notour Bankruptcy.
John and Hugh Finlays, Merchants in Glasgow, v. James Aitchison and William Moffat
Date: 21 January 1767 Case No. No 180.
The execution of a messenger, bearing, that being refused access to the debtor's house, and having broken it open, he had not found the debtor, was not held to be sufficient evidence, that the debtor had fled and absconded, so as to constitute him bankrupt, in terms of the act 1696.
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John Romanis, merchant in Lauder, February 1. 1762, granted an heritable bond to James Aitchison, on a house belonging to him, for L. 40 Sterling, and on this bond infeftment followed next day.
On the 4th February 1762, Romanis granted another heritable bond to William Moffat, on a burgess-acre in Lauder for L. 25 Sterling, on which infeftment was taken the day it was granted.
On the 11th February 1762, Romanis executed a trust-disposition of all his moveable subjects, in favours of certain trustees, of whom Robert Henderson messenger was one; upon which disposition, an instrument of possession was taken next day.
John and Hugh Finlays being creditors to John Romanis in a bill for L. 32 Sterling, raised horning, and transmitted it, with an inhibition on the same ground of debt, to Robert Henderson the messenger, who, unknown to the Finlays, was one of Romanis's trustees, with orders to execute the diligence immediately.
Henderson delayed executing the Finlays diligence; but, in consequence of a poinding and other steps, he, as trustee, had collected considerable sums belonging to Romanis, upon which the Finlays used arrestments in the hands of Henderson, and the other trustees; and, having got their diligence executed by another messenger, upon the charge elapsing, a caption was taken out against Romanis; upon which, on the 12th March 1762, an execution was returned, bearing that the messenger had broke open, and searched Romanis's house, but could not find him; and had reason to believe he made his escape by a back door.
Posterior to these proceedings, on the 7th December 1762, Romanis, with consent of his trustees, and William Moffat, exposed the burgess-acre, in which Moffat had been infeft in consequence of his bond, to roup; and the same was purchased by a cousin of John Romanis; and, upon a narrative of having received the price, Romanis disponed the acre to his cousin.
John and Hugh Finlays brought an action upon the statute 1696, concluding for reduction of the foresaid heritable bonds and infeftments granted by Romanis to Aitchison and Moffat, as being within 60 days of his bankruptcy, and in defraud of his creditors.
The Lord Coalston, Ordinary, allowed a proof, to shew that Romanis had fled or absconded, to prevent the execution of the diligence; and afterwards pronounced an interlocutor, finding it proved, that Romanis had absconded; and therefore reducing the bonds in favour of Aitchison and Moffat, as granted within 60 days of Romanis's bankruptcy. But afterwards his Lordship took the cause to report to the Court.
Pleaded for John and Hugh Finlays, pursuers: The act 1696 intended that it should be in the power of creditors to frustrate the partial designs of bankrupt debtors, by making their bankruptcy notorious, whether the debtor would or not; and therefore the act does not stop at the alternatives of imprisonment, forcibly defending or entering into sanctuary; as it might have been in the power of a debtor to have avoided these alternatives, by moving from his ordinary place of residence; and therefore the act adds, ‘or flee or abscond for his personal security.’ That from the execution and deposition of the messenger, in this case, it appeared, that he had been refused access into Romanis's house, to search for him, and that, upon breaking open the door, and searching the house, Romanis was not to be found; and this they contended was sufficient to bring him within the act 1696; as Romanis, though allowed a proof, had not shown that his absence was owing to any other cause than flying from diligence; and, in support of this, a decision, Mudie contra Dickson, &c. November 14. 1764 was referred to. (No 179. p. 1104.)
Answered for the defenders: It is indeed true, that Romanis happened to be from home the night on which the messenger searched the house; but that was purely accidental; and a single act of absence at the time a search happens to be made, can never be construed absconding in the sense of the act of Parliament, which expressly requires absconding, for personal security; that an execution, although it may be evidence of the facts that happened on the occasion, and prove either that a person could not be apprehended, or was not found in a house, cannot be admitted as evidence of any other fact, like absconding, which is extraneous, as the absence may proceed from various reasons.
‘The Lords found no sufficient evidence to show that Romanis had absconded, in terms of the act 1696; and therefore repelled the reasons of reduction.’
Reporter Coalston.For Finlays, Jo. Maclaurin.For Aitchison, Geo Wallace.—— Clerk.
Fol. Dic. v. 3. p. 54. Fac. Col. No 54. p. 95.
