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.
Subject_3 Proof of Absconding.

James Berrie
v.
The Carron Company

Date: 4 July 1775

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[Fac. Col. VI. 92; Dictionary, p. 1,110.]

Monboddo. The Act 1696 is the best of our bankrupt laws, and deserves the most liberal interpretation, because it tends to introduce a pari passu preference. If Wright was once made bankrupt, there is no law which obliged the creditor to make him again bankrupt.

Kaimes. My difficulty is not there. But the question is, Whether the execution of search is sufficient to make the debtor a bankrupt? Every word of the execution may be true, yet the man may at that moment have been walking at the cross of Glasgow. When we consider the proof, we see that he was not in Glasgow; but we also see that he had told the very person who had the diligence, that he was to be from home on the Saturday, the day on which the search was made: How can I say that Wright, in such circumstances, absconded?

Covington. This deed falls under the statute 1696. Stevenson, Wright's clerk, says, “that, long before the execution, Wright acknowledged to him that he was harassed by creditors, and would be obliged to leave Glasgow for some time.”

[This seems to allude to a more distant period by a year.]

Coalston. The evidence from the execution is good evidence, prima facie, of absconding. Yet still it may be redargued; and I remember, some years ago, a case from Perth, where such evidence was redargued; but there is no such proof here.

President. This is a favourable case, for the creditors only ask a pari passu preference. At first sight it may seem odd that the caption was executed, when the person employed to do diligence knew that the debtor was to be from home; but it will be observed that the time pressed, for that was the 58th day after the granting of the deed under challenge, and if the diligence had not been executed then, it could not have been executed till Monday, the very last day on which the debtor could have been rendered bankrupt effectually.

Monboddo. The Carron Company might have proved that Wright did not abscond; but this they have not done.

On the 4th July 1775, The Lords reduced the deed on the statute 1696; adhering to Lord Monboddo's interlocutor.

Act. W. B. M'Leod. Alt. R. Blair.