Decisions upon the act 5th Parliament 1696, declaring Notour Bankrupts.
Subject_3 SECT. I.
Circumstances which infer Notour Bankruptcy.
Alexander Ross v. James Chalmers
Date: 25 June 1782 Case No. No 185.
Found, in conformity with Carron Company against Berrie, supra.
A proof offered, that the debtor had left his house, not to avoid diligence, but to visit his wife, was held, although it should be made our, not sufficient to redargue the execution.
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Learmonth indorsed sundry bills to Chalmers, in security of a prior debt, and soon after stopped payment. On the sixtieth day posterior to the indorsation, a messenger, possessed of letters of caption, searched the bankrupt's house between the hours of eleven and twelve at night, in order to apprehend and incarcerate him, though without success.
An action, for setting aside the indorsations above mentioned, was brought by Mr Ross, as trustee for Learmonth's creditors; in which the question occurred, whether this execution of search was per se complete evidence of the bankrupt's having absconded, in terms of the statute 1696.
Pleaded for the defender: The mere absence of a debtor from his house, when a messenger intended to have executed a caption against him, cannot establish this legal qualification of bankruptcy. It is, at the utmost, only a circumstance tending to support such an allegation, and may be elided by proof, that it did not proceed from any purpose of avoiding the diligence of creditors. Hence the practice in questions of this kind has been, to allow a proof of collateral circumstances, upon the result of which the decision is understood to depend. This method was followed in the cases of Finlay contra Aitchison and Moffat, No 180. p. 1106. and of James Berrie and others contra the Carron Company, No 184. p. 1110.: And, in the present instance, the defender offers to prove, that the common debtor left his house that day on which his house was searched, for the purpose of visiting his wife, who at that time resided with her father.
Answered for the pursuer: The intention of absconding being an act of the mind, is only capable of proof from external circumstances. When, therefore, the debtor's insolvency is notorious, and he is under diligence by horning and caption, a search, following on the caption, at his usual place of residence, must afford legal evidence of this qualification of notour bankruptcy. Accordingly the general scope of the decisions upon this point has been, to hold this circumstance as sufficient; Mudie contra Dickson, No 179. p. 1104.; Fergusson contra Smith, No 182. p. 1109. Nor can the force of this evidence be removed, by the defender's proving, that the debtor's absence arose from different causes, which might be alleged in every case, and would in a great measure frustrate the purposes of the act.
The Lords seemed to be of opinion, That the excution of search was of itself conclusive evidence of the debtor's having absconded, and could not be redargued by the proof here offered. They therefore
‘Sustained the reasons of reduction.’
Reporter, Lord Stonefield.Act. Mat. Ross.Alt. Maclaurin.Clerk, Menzies.
Fol. Dic. v. 3. p. 54. Fac. Col. No 49. p. 78.
