Scottish Court of Session Decisions

At advising—

Lord President—By the Bankruptcy Act of 1856 notour bankruptcy may be constituted either, first, “by sequestration, or by the issuing of an adjudication of bankruptcy in England or Ireland,” or secondly, “by insolvency concurring either with a duly executed charge for payment, followed, where imprisonment is competent, by imprisonment” or its equivalent. But there is an alternative under this second subsection, which is, that ‘where imprisonment is incompetent or impossible” the charge for payment is to be followed “by execution of arrestment of any of the debtor's effects not loosed or discharged for fifteen days, or by execution of poinding of any of his moveables, or by decree of adjudication of any part of his heritable estate.” Now, it must be observed that the cases in which the charge required to be followed by arrestment, pointing, or adjudication are cases in which, as the law then stood, imprisonment was incompetent or impossible. But the 6th section of the Act of 1880 provides, not for cases in which previous to that Act imprisonment was incompetent or impossible, but for cases in which imprisonment was rendered incompetent by force of the provisions of that Act itself. Therefore the two sections do not deal with the same subject-matter. Cases in which imprisonment is incompetent or impossible, not by reason of the Act of 1880, but on other grounds, will still continue to be regulated by that part of the Act of 1856 which I have read. I apprehend that these provisions of the Act of 1856 remain in full force, and in such cases the expired charge must be followed by arrestment, poinding, or adjudication. But in cases under the Act of 1880 a new form of procedure for constituting notour bankruptcy is introduced. The 6th section provides that “In any case in which, under the provisions of this Act, imprisonment is rendered incompetent, notour bankruptcy shall be constituted by insolvency concurring with a duly executed charge for payment followed by the expiry of the days of charge without payment, or where a charge is not necessary or not competent, by insolvency concurring with an extracted decree for payment followed by the lapse of the days intervening prior to execution without payment having been made.” Now, the meaning of this part of the section does not admit of doubt. It is perfectly plain and distinct, and the only difficulty arises from the concluding provision of the section, that “Nothing in this section contained shall affect the provisions of section seven of the Bankruptcy (Scotland) Act 1856.” But I do not think that in construing the 6th section of the Act of 1880 in the way I propose we shall be doing anything to affect the provisions of the 7th section of the Act of 1856. The provision of that section which relates to cases in which imprisonment was incompetent or impossible will still remain law. In such cases arrestment, poinding, or adjudication must still be resorted to. But in cases in which imprisonment is rendered incompetent by the Act of 1880, these proceedings are not necessary, as they are not required by the Act.

Lord Mure—I have come to the same conclusion. The Act of 1880 has introduced a new mode of constituting notour bankruptcy, but I agree with your Lordship in thinking that the whole provisions of the Act of 1856 remain in force, except in regard to those cases in which under the Act of 1880 imprisonment has been abolished. In regard to such cases I am of opinion that they are regulated solely by the Act of 1880, and consequently that in reference to them arrestment, poinding, or adjudication are unnecessary. The two sections thus seem to me perfectly consistent, and may be read together.

Lord Shand—I concur generally in the views stated by your Lordships. It appears to me that the 6th section of the Act of 1880 is to be read with the 7th section of the Act of 1856, on the footing that both provisions are still subsistent; and that while the Act of 1880 has produced a radical change in the mode of constituting notour bankruptcy, by making the mere expiry of the days of charge sufficient in the ordinary case—for it is now the ordinary case—in which imprisonment was rendered incompetent by the Act, it was nevertheless intended to save the other modes of constituting notour bankruptcy under the Act of 1856, and these modes of constituting notour bankruptcy accordingly are still effectual.

Lord Deas was absent.

The Court directed the Lord Ordinary accordingly.