Scottish Court of Session Decisions

The question in this case was, whether the Court have jurisdiction to sequestrate the estates of the heir-apparent to a property in Scotland, and whether the said estates mere liable to sequestration at the instance of a creditor under the Bankruptcy (Scotland) Act 1866, 19 and 20 Vict., cap. 79?

Section 13 of that Act enacts, that

“Sequestration may be awarded of the estate of my person in the following cases:—

“lst, In the case of a living debtor subject to the jurisdiction of the Supreme Courts of Scotland;

“ A. On his own petition, with the concurrence of a creditor or creditors, qualified as hereinafter provided.

“ B. On the petition of a creditor or creditors, qualified as hereinafter mentioned, provided the debtor be notour bankrupt, and have, within a year before the (late of the presentation of the petition, resided or had a dwelling-house or place of business in Scotland,” &c.

Section 7 enacts, that

“Notour bankruptcy shall be constituted by the following circumstances:—

“1st, By sequestration, or by the issuing of an adjudication bankruptcy in England or Ireland; or,

“2d, By insolvency, concurring either—

(A.) With a duly executed charge for payment, followed, where imprisonment is competent, by imprisonment or formal and regular apprehension of the debtor, or by his flight or absconding from diligence,” &c.

It appeared from the proof that the respondent was a young man, unmarried. and twenty-five years of age; that he had, from 1853 till 1E63, been an officer in the Army; that he had thereafter, with the exception of a few visits to his father's house, lived in England and at different places on the Continent; and that, during the year 1866, he had only resided at his father's house continuously for a fortnight, in the months of April and May.

It also appeared that, on the assumption of his father's house being his residence, a charge of payment was loft for him there at the instance of the petitioning creditor, and that upon the expiry of the charge, an execution of search was returned by the messenger, to the effect that the debtor could not be found. It was said that this implied “flying or absconding from diligence” in the sense of the Bankrupt Act, sufficient to constitute the debtor notour bankrupt.

The Lord Ordinary ( Ormidale) that the found respondent was not, at the date when the petition was presented, subject to the jurisdiction of the Supreme Courts of Scotland, or a notour bankrupt within the meaning of the 13th section of the Statute 19 and 20 Vict., cap. 79,” and dismissed the petition, with expenses. His Lordship added in his note, “The respondent is not the owner of any real estate in Scotland, and jurisdiction has not been constituted nor attempted to be constituted against him by arrestment of funds or moveable estate belonging to him. Nor does it appear that the respondent had been resident in Scotland for forty days preceding the presentation of the petition for sequestration. The contrary, indeed, is established by the proof.” His Lordship then stated the import of the proof, as given above, and continued, “In this state of matters, the Lord Ordinary has been unable to satisfy himself that the respondent was, when the present petition for sequestration was presented on 18th July 1866, subject to the jurisdiction of the Courts of Scotland, ratione domicilii, and no other ground of jurisdiction has 11een alleged or attempted to be made out. If this be so, it is for the same reason equally clear that the respondent was not rendered notour bankrupt by service of diligence and search made for him at his father's house in June 1866, where he was not living, and that not being his dwelling-place or residence in any sound or correct sense.”

The petitioning creditor reclaimed.

Watson and Trayner for him.

Munro in reply.