Decisions upon the act 5th Parliament 1696, declaring Notour Bankrupts.
Subject_3 SECT. I.
Circumstances which infer Notour Bankruptcy.
James Richmond and Others v. Trustees of Charles Dalrymple
Date: 14 January 1789 Case No. No 189.
Other proof of a bankrupt's imprisonment in terms of the statute, besides a messenger's execution, is admissible. To establish the bankruptcy in this case, parole proof was brought that the bankrupt had been repeatedly apprehended by messengers within the 60 days, but not imprisoned or detained in custody; circumstances held not to be sufficient to constitute bankruptcy in terms of the act.
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An assignation by a debtor, in favour of the Trustees of Dalrymple, one of his creditors, was brought under reduction by Richmond and others of his creditors, as having been executed within 60 days of his bankruptcy, contrary to the statute of 1696, cap. 5.
To establish the debtor's bankruptcy in terms of the statute, the pursuers adduced a parole-proof, of his having been repeatedly apprehended by messengers during the 60 days, but without being imprisoned or detained in their custody.
The defenders pleaded: The execution of a caption is an actus legitimus; of which no other evidence can be admitted than a regular and formal document; Dirleton, No 102. p. 40. Duke and Duchess of Monmouth contra Scott, voce Proof; Forbes, MS. 25th June 1714, Hasswell contra Magistrates of Jedburgh, voce Prisoner; Fountainhall, v. 1. p. 356. Glendining contra Glendining, voce Mutual Contract. On this principle, and not on the ground stated in the Faculty Collection, was determined the case of Maxwell contra Gibb, No 188. p. 1113.
Answered: Where certain forms are prescribed for giving validity to any legal deed; as the instrument of a notary in sasines, and perhaps too in the consignation of redemption-money, or as the execution of a messenger in poindings; these being requisite steps of procedure, are indeed indispensible. But the statute of 1696 has not required, as a solemnity or necessary form, the execution of a messenger. The facts therefore on which that enactment proceeds, may be proved prout de jure; nor do any of the cases quoted by the defenders exceed the bounds of the above admission. Their ill-founded idea of the decision, Maxwell contra Gibb, is acknowledged to be contradicted by the report of the case.
The Court expressed an unanimous opinion, That there was no ground for supposing the execution of a messenger to be essential to the proof of the facts respecting a bankrupt's imprisonment, which might be equally well established by parole-testimony. But as in this case that evidence was deemed inconclusive, the circumstances proved not amounting to imprisonment, in the sense of the statute, more than in the case of Maxwell and Gibb,
The Lords adhered to the Lord Ordinary's interlocutor, assoilzieing the defenders.
Lord Ordinary, Stonefield.Act. Tait.Alt. Hay.Clerk, Sinclair.
Fol. Dic. v. 3. p. 53. Fac. Col. No 54. p. 95.
