A factor appointed by Court of Session, in virtue of the bankrupt act 1772, c. 72. found liable in the penalties, after the statute itself had been allowed to expire.
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In 1779, Ramsay was appointed factor by the Court of Session on an estate sequestrated in terms of the act 1772. He neither lodged his accounts, nor made the dividends agreeably to the directions of the law.
In 1784, after the above mentioned statute had been allowed to expire, Macilwraith, a creditor of the person whose effects had been sequestrated, complained, in a summary manner, of these proceedings, to the Court; insisting not only for redress of the wrong that had been committed, but also for an infliction of the statutory penalties.
A doubt having arisen, how far these penalties could now be sued for, the com plainer
Pleaded; The parity of distribution directed by the act 1772 was indeed the creature of positive law; but the authority of the Court of Session to name factors, and to take cognisance of their proceedings in a summary way, is an inherent part of their jurisdiction. A power of punishing the factors appointed by them, by imposing adequate pecuniary fines, is of the same nature. Every judge must in this manner be enabled to enforce obedience to his lawful commands. Indeed any difficulty that could arise seems to be removed in the present case, by the posterior act in 1782, which provides, that the rights of creditors under 'the preceding bankrupt-statute shall remain entire.'
Answered; The power of imposing discretionary fines on the servants or officers of Court, according to the demerits of the offender, and that of pronouncing a decreet for a penalty prescribed by a particular law, without any regard to the alleviating circumstances of the case, are in their nature totally different from each other. The one is implied in the constitution of every court; the other, resulting only from positive enactment, must of course cease along with the law from which it originated. In the Court of Exchequer, accordingly, where, from the great fluctuation of the statutes relating to the revenue, this question might have been often agitated, no example can be given in which action was sustained for penalties incurred during the subsistence of a law which has been repealed or which, being of a limited endurance, has been allowed to expire. And it is of no importance, that by a particular clause in the act of the 23d of his present Majesty, the rights acquired by creditors under the enactment of 1772 have been preserved. Without this provision, every one would have been at liberty, after the expiration of the first statute, to attach the sequestrated effects of his debtor, as if no such proceedings had been held. But a penalty not insisted for during the continuance of the act 1772 cannot be thought to fall under this exception. It might, with equal propriety, be maintained, that, in consequence of a bankruptcy occuring before the act was allowed to expire, creditors might now apply for a sequestration; or that, if a petition had been preferred for that purpose on the day the statute ceased to be in force, it would have been competent afterwards to proceed to the nomination of a factor, with the statutory powers.
By one interlocutor, the Lords dismissed the complaint as incompetent. But after advising a reclaiming petition for the complainer, with answers in behalf of Robert Ramsay, they altered that judgment, and
'Found the respondent liable in a penalty of L. 15 Sterling.'
Reporter, Lord Henderland.Act. Geo. Fergusson.Alt. Dean of Faculty.Clerk, Home.
Fac. Col. No 329. p. 504.
