Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 SEQUESTRATION.

Click here to view a pdf copy of this documet : PDF Copy

FORM OF PROCEEDING BEFORE THE ORDINARY, OR IN COURT.

Proceedings in a sequestration, if unfinished at the end of a Session, go to the Ordinaries on the Bills during the ensuing vacation, and may be proceeded in before them. And in the same way, where begun before the Ordinary on the Bills, may be proceeded in before the Court; but this must be begun by petition,—for, until then, the cause is not in Court; and not only must this form be observed, but the petition, before the Ordinary, must be printed and boxed with the other petition, in order that the Court may see what has been going on.

A Judicial sale having been made of the estate of Lainshaw, as a bankrupt estate, which was not opposed by Sir Walter Montgomery Cuningham, the proprietor; the Creditors applied to have the estate sequestrated: but this Sir Walter would not agree to, alleging that, as sequestration was a rigorous diligence, (Ersk., B. 2, tit. 12, § 56,) and as there was already a faithful honest factor upon it appointed by him, provided the same factor was continued, he was ready to find caution for his behaviour, in the same way as if he was a Lord's factor. But this measure the Lords did not incline to adopt: they thought it might open a door to fraud and collusion ; therefore they, 25th February 1778, sequestrated the estate, but remitted to the Ordinary to hear parties on the nomination of the factor; and if it should appear to him that Sir Walter's factor was proper to be the Lord's factor, it was probable he would be the man.