Scottish Court of Session Decisions

Subject_1 PART I.

FOREIGN.

Jacob and John Rhones
v.
John Parish and John Henrich Schreiber.

Date: 6 August 1776
Case No. No. 2.

Creditors of a bankrupt acceded to a trust in favour of the whole creditors. The trustee found preferable, such acceding creditor using diligence, even as to effects situate in a foreign country.

See No. 103. P. 4593.

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Joseph Turner, merchant in Bremen, failed in the year 1772.

By the law of Bremen, the effects of the Bankrupt are taken into the management of the Senate of Bremen, and the creditors appearing before the Senate, chuse a certain number of the Senators as trustees on the bankrupt estate.

Messrs. Parish and Schreiber being creditors of the bankrupts, used arrestments in the hands of certain persons in Scotland, who were consignees of a quantity of yarn belonging to the bankrupt.

The Messrs. Rhones and others, trustees for the creditors of the bankrupt, having claimed to be preferred in that character against the arrestments used by Messrs. Parish and Schreiber, it was contended in favour of the arresters, that the trust right founded on by the pursuers could have no effect extra territorium, and could not take away the preference of an arrestment in Scotland.

After some procedure, the Lord Ordinary pronounced the following interlocutor:

“Finds, primo, the respondents having given their vote for the choice of the trustess, or having proved their debts before the trustees, and made a demand for payment, is sufficient evidence of their having acceded to the trust right, which it seems by the law of Bremen is vested in certain members of the Senate, chosen by the creditors, and that accession precludes them from taking separate measures in this country in order to obtain a preference over the rest of the creditors; Secundo, that the facts above mentioned inferring their accession to the trust right are to be held as proved by the certificates produced, unless the respondents will undertake to prove that the facts set forth in these certificates are not true: Therefore alters the former interlocutor, finds no farther proof on the part of the trustees necessary, and therefore prefers the said trustees to the sums in the hands of the raisers of the multiplepoinding, and decerns and declares accordingly.”

The Court, upon advising a petition and answers, adhered to the Lord Ordinary's interlocutor; and afterward another petition and answers having been given in, and after a hearing in presence upon the effect of the accession, the Court adhered to their former judgment.

Lord Ordinary, Monboddo. Act. Wright, Henry Erskine Alt. Craig.