Decisions upon the act 5th Parliament 1696, declaring Notour Bankrupts.
Subject_3 SECT. I.
Circumstances which infer Notour Bankruptcy.
Elliot v. Scot
Date: 3 March 1768 Case No. No 181.
A debtor in the custody of a messenger, but not imprisoned, procured a bond of presentation, and failed to appear at the time appointed. These facts, joined with insolvency, found insufficient to constitute him bankrupt in terms of the act 1696.
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The common debtor having been apprehended upon caption, escaped imprisonment, by finding security in a bond of presentation, but failed to appear; whereupon a protest was taken, and diligence raised upon the bond.
In a ranking, certain securities, granted within 60 days of the arrest, were objected to, as falling under the sanction of the statute 1696.
Pleaded for the objector: 1mo, The design of the statute was to provide a remedy against the frauds of bankrupts; and, though it specifies certain particular alternatives, the remedy was meant to extend to every case, where ultimate personal diligence should be used, without effect. Equivalents, therefore, will supply the place of those alternatives. Being in the custody of a messenger is equivalent to actual imprisonment: A sist, on a bill of suspension, is equally ineffectual in the one case as in the other: And, though a simple arrest may be attended with less notoriety than imprisonment, it is more publicly notorious than the other alternatives of absconding or deforcement. Upon these principles, it was determined in the House of Lords, that a debtor, being actually in the custody of a messenger, was imprisoned in the true intent and meaning of the act 1696; 18th February 1755, Creditors of Woodstone contra Scot, No 178. p. 1102.
2do, The debtor became notour bankrupt in another view; by failing to appear in terms of the bond of presentation, which must be considered as absconding from diligence.
Answered to the 1st:—The statute is correctory, and, therefore, does not admit of equivalents. Accordingly, incarceration on an act of warding, is not deemed imprisonment within the statute: Far less will detention for an hour or two in the hands of a messenger; a thing which might well escape the observation of the lieges, who would be ensnared by such an extension of the law. The decision, in the case of the Creditors of Woodstone, is a single judgment, and hardly reconcileable to principles.
To the 2d:—The debtor may have failed to present himself from different accidental circumstances, without an intention to abscond, which will not be presumed without evidence.
‘The Lords found, That, although the principal debtor be proved to have been in the custody of a messenger, in virtue of letters of caption; yet this, joined with insolvency, is not sufficient to constitute him a bankrupt, in terms of the act 1696.’
For Elliot, Wight.Alt. Crosbie.
Fac. Col. No 66. p. 306.
