Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BANKRUPT - PERSONAL PROTECTION.

Robert Johnston and Donald Smith
v.
Alexander Chisholm and Others

Date: 10 March 1773

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[Faculty Collection, VI. p. 169; Dictionary, 10, 473.]

Coalston. I doubt whether the nomination of trustees takes the matter out of the jurisdiction of the Court, so far as to prevent the Court from giving aid.

Pitfour. As to the powers of the Court, the giving a protection is for the benefit of the creditor, not for the conveniency of debtors. I do not see that the statute has made a difference when the estates are vested in trustees.

President. I differ totally from what I have heard: Creditors may give a supersedere,—the bankrupt may suspend. There is no word in this statute which gives the Court a power of granting personal protections after trustees are once named. If the creditors incline to have affairs conducted by trustees, every thing returns into the course of the common law.

Justice-Clerk. It shall not be the interpretation of a doubtful clause in the statute, which will make me hold that a personal protection may be granted in opposition to the Act, 5th Geo. III.

On the 10th March 1773, “The Lords found that the Court is not empowered, by Act of Parliament, to grant the personal protection; and therefore refused the petition.

For the petitioner, A. Lockhart.

Alt. J. M'Laurin.