Scottish Court of Session Decisions

In November, 1834, James Cochran, farmer at Riccartsbar, presented a petition, setting forth, that he was a creditor of Robert M'Laren, merchant and dealer in Port-Dundas, for £125; that he had done diligence by horning and caption against M'Laren, and had imprisoned him, on 11th December, 1833; that M'Laren was still incarcerated; and he prayed for warrant of service on him to show eause why his estates should not be sequestrated. M'Laren objected to the competency of the application on various grounds, and, especially, because more than four months had elapsed after the last step of the above diligence had been done against him. By § 15 of the Bankrupt Act, it was provided, that if a person “shall be under legal diligence by horning and caption against him for debt, and shall, in virtue thereof, be imprisoned,” it should be lawful for the creditor, “at any time within four calendar months of the last step of the said diligence, to apply for sequestration.” The last step of the diligence was the act of incarceration. That took place on 11th December, 1833, and the petition, not having been presented before November following, was incompetent.

Cochran answered, that incarceration, viewed as a step of diligence, was not a completed and concluded act, so soon as the prisoner was within the jail, but was a continuous and current step of diligence, so long as the imprisonment remained in force. While that public character of bankruptcy remained affixed to a debtor, or at any time within four months after his liberation, it was competent to apply for sequestration.

At advising the case, Lord Balgray, who presided in the absence of the Lord President, suggested, that as it was an important question whether the first moment of incarceration was the last step of diligence, in the sense of the statute, it might be proper to order minutes of debate. It was represented by the parties, however, that they were unable to bear the expense of a protracted discussion, and judgment was craved accordingly.