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 Act 1696. The apprehending of an Insolvent Debtor, without imprisonment or taking into custody, insufficient to qualify the statutory Bankruptcy.

George Maxwell and Others, Creditors of Ebenezer M'George
v.
Mr Adam Gib, Minister

Date: 17 November 1785

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[Fac. Coll. IX. 359; Dict. 1113.]

Eskgrove. The only question here is as to the Act 1696. And what is required by that act? It is a correctory law, and a strong one, and so must not be extended by interpretation. Here there is no apprehending. I doubt whether, if actual imprisonment followed, payment of the debt would be sufficient to put a man out of the Act 1696.

President. The case of Udston was different from the present one, for there the debtor was detained for thirty-six hours. The case of Lord Hopeton is misunderstood.

Braxfield. The question is not as to the effect of paying the debt after incarceration. But, were it good law that such payment would take a man out of the Act 1696, the consequence would be, that, a creditor for L.20 having imprisoned his debtor and brought him under the act, another creditor for L.1000, whose debt fell within the provisions of the act, would enable the debtor to pay the L.20, and so make place for his own debt.

On the 17th November 1785, “The Lords sustained the defences.”

Act. Robert Corbet. Alt. H. Erskine. Reporter, Alva.