Decisions upon the act 5th Parliament 1696, declaring Notour Bankrupts.
Subject_3 SECT. I.
Circumstances which infer Notour Bankruptcy.
The Carron Company, v. James Berrie and Others
Date: 4 July 1775 Case No. No 184.
An execution of search found to afford, per se, sufficient evidence of absconding, unless redargued by proof of very pregnant circumstances of a contrary tendency.
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James Berrie and others, creditors of James Wright, merchant in Glasgow, having, in the course of a competition, taken exceptions to an heritable security in the form of a wadset, granted by him in favour of the Carron Company, upon the footing of the act of 1696, as having been granted within 60 days of Wright's being notour bankrupt in terms of that statute; the Lord Ordinary, after hearing parties, pronounced the following interlocutor:
“Finds the execution of the search is sufficient evidence of Wright's absconding from the diligence of his creditors; therefore prefers the said James Berrie, and the other creditors mentioned in the interests produced for them.”
In a reclaiming bill, on the part of the Carron Company, it was insisted, that the execution of the search produced was not sufficient evidence to bring Wright within the description of a notour bankrupt in terms of the act 1696: That the purpose of the act would indeed be sadly defective, if an execution such as the present, (in many instances collusive, and a mere sham, as in fact it was in this very case), were to be held as sufficient evidence of a debtor's absconding from diligence: That he did not abscond, in the proper sense of the word: That there was no stop in carrying on his business: That the Carron Company, in particular, dealt with him afterwards, furnished him with goods, and received payments, never dreaming that they were all the while corresponding with a person notour bankrupt, and rendered incapable by law of granting any valid security.
‘The Lords, before advising the petition with answers, allowed the respondents, the said James Berrie and others, to prove that James Wright absconded from the diligence of the law, and all facts and circumstances material for proving the same; and allowed the Carron Company to prove that Wright continued his business without interruption at the time, and after the date of the search produced, and did not abscond from the diligence of the law.’
But the proof, when reported, not appearing such as to detract from the messenger's returned execution, but rather tending to confirm it; while the burden of the proof in this case undoubtedly lay chiefly upon the party who sought to redargue it: After advising the proof, with the petition and answers,
‘The Court adhered to the Lord Ordinary's interlocutor.’
Act. Blair.Alt. B. W. M'Leod.Clerk, Ross.
Fol. Dic. v. 3. p. 54. Fac. Col. No 176. p. 92.
