Scottish Court of Session Decisions

Subject_1 PART I.

BANKRUPT.

John Macadam of Craigengillen, and Others,
v.
William Macilwraith, James Gray, and Duncan Niven

Date: 23 November 1771
Case No. No. 5.

Act 1696, C. 5. - The apprehension of a debtor, and his being in custody of the messenger upon a caption, held to be imprisonment within the meaning of the statute.

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John Alison being in debt to a number of creditors, upon the 31st March 1768 was apprehended upon a caption at the instance of Macilwraith; when, upon making a partial payment of the debt, and granting an heritable bond for the residue, he was dismissed from the custody of the messenger, the caption being still kept hanging over his head undischarged.

In the month of April and on the 21st of May, thereafter, Alison, being perfectly insolvent, granted several heritable securities in favour of the defenders his creditors; which Were accordingly challenged by the pursuer upon the act 1696, c. 5. as having been granted within less than sixty days of his notour bankruptcy.

The argument used by both parties, in this case, was precisely the same that had been urged in the case, 18th Feb. 1755, Creditors of Woodston contra Colonel Scott of Comistone, No. 178. p. 1102.

The pursuers insisted, That the statute being intended to aid the common law in preventing frauds, was entitled to a liberal construction; that imprisonment was only a mark of bankruptcy, and being in the Custody of a messenger was equivalent to imprisonment; and so it had been decided, in the case mentioned, in the House of Lords, where it was declared, “That the debtor having been arrested, and, actually in custody of the messenger upon the caption, was imprisoned within the true intent and meaning of the act.”

The defenders, on the other hand, maintained, That the statute was to be strictly interpreted, and that the law admitted of no equivalent for actual imprisonment; and that, in the present instance, there had been no cessio fori, as the debtor had, after his apprehension, carried on business as usual.

The pursuer separately urged and founded on two acts of warding, that, on the 27th of May, had been executed against the bankrupt upon two registered protests; but upon which, on account of his being then at the point of death, no imprisonment had followed.

The Lords, in giving judgment, paid no regard to the acts of warding, which they deemed insufficient; but were clearly of opinion, That the apprehension upon the caption, which, notwithstanding his liberation, had still been kept up in force, was a sufficient fulfilment of the statute, and that the case of Woodston must be followed.

The following judgment was given:

“In respect John Alison's insolvency, at the time of granting the deeds challenged, is sufficiently instructed; and that it is also instructed, that, on the 31st March 1768, he was apprehended and in custody of a messenger, in virtue of a caption, on a debt due to William Macilwraith, from which, though he was afterward dismissed, yet the debt and caption were never discharged; therefore the Lords sustain the reasons of the reduction of the deeds challenged as falling under the act 1696, and remit to the Ordinary accordingly.”

Lord Ordinary, Auchinleck. For Macadam, A. Lockhart. For Macilwraith, G. Wallace. Clerk, Tait. Fac. Coll. No. 110. p. 331.