The trustee for the creditors of a bankrupt is not entitled to bring a charge of fraudulent bankruptcy against him without the concurrence of his Majesty's Advocate.
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Hew Darby, trustee on the sequestrated estate of James Love, and himself claiming as a creditor, presented a petition and complaint, in which he accused Love of fraudulent bankruptcy, and craved that he might be punished accordingly; 1621, c. 18.; 1696, c. 5.; 33d Geo III. c. 74. § 27, 28.
The facts charged were alleged to have happened during the dependence of the sequestration.
This complaint being brought without concurrence of His Majesty's Advocate, the defender, inter alia, objected to its competency on that account, 10th August 1765, Syme, voce Summary Application; 1777, Blacklaw. See Appendix.
The pursuer, on the other hand, stated, that it was the practice of the Court to exercise their criminal jurisdiction incidentally, without that concurrence, where the crime occurs in the course of actions depending before them, Acts of Sederunt, 13th June 1561, Stevinston; 8th January 1736, Blackadder; 14th June 1782, Brown. That the sequestration in the present case must be considered as a depending action; and that the concurrence of his Majesty's Advocate was not necessary to complaints of fraudulent bankruptcy, even where there was not a previous dependence, Acts of Sederunt, July 26. 1748, Mackenzie and others; 4th February 1757, Wauchope.
Observed oy the Bench, It is usual for the Court to punish incidentally perjury or prevarication committed in the course of a process depending before them, these crimes being of the nature of a contempt of Court. When any other matter of criminal charge, such as fraudulent bankruptcy, comes under their observation in the course of a civil action, it is the duty of the Court to take notice of it; but the proper mode of proceeding is, to recommend to his Majesty's Advocate to inquire into the matter, and, as he shall see cause, give his instance or concurrence to a prosecution brought in proper form. And a formal complaint at the instance of an individual, without concurrence of his Majessy's Advocate for the public interest, is, in such cases, wholly incompetent.
Upon advising the complaint, answers, replies, and duplies, (27th June 1795,) “the Lords dismissed the complaint;” and, upon advising a reclaiming petition, answers, &c. “adhered.”
Act. Greenshiels.Alt. Tait.Clerk, Colquhoun.
Fac. Col. No 202. p. 483.
