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SCOTTISH_HoL_JURY_COURT

Page: 254↓

(1822) 1 Shaw 254

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

1 st Division.

No. 47.

William Taylor, Appellant.—Brougham

v.

Samuel Little, Respondent.—Moncreiff—More

July 26. 1822.

Subject_Stat. 54. Geo. III. c. 137. — Bankrupt — Sequestration. —

Held, (affirming the judgment of the Court of Session,)—1.—That a coal-lessee dealing in coal, although not buying it, is liable to sequestration; and,—2.—That it is no objection that the affidavit of the creditor applying for sequestration has been made before a Justice of the Peace in Ireland.

The appellant, Mr. Taylor, held leases of several very extensive coal-works in the county of Ayr, the produce of which he disposed of chiefly by exporting it to the Irish market. His affairs

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having become embarrassed, he executed a deed of trust, conveying his whole effects to trustees for behoof of his creditors; and among others, Mr. Murdoch, writer in Ayr, acceded to this arrangement. After the management had been for some time in the hands of these trustees, the respondent, Mr. Little, a merchant in Stewartstown in the county of Tyrone in Ireland, a creditor of Mr. Taylor, (but who had not acceded to the trust,) presented a petition to the Court of Session for sequestration of Mr. Taylor's estates. In support of this application Mr. Little produced an affidavit which he had made at Dungannon, on the 20th of August 1818, in presence of William Murray, Esq. one of his Majesty's Justices of the Peace for the county of Tyrone, and in which he deponed that a debt of upwards of £200 was owing to him, and that he believed that Mr. Taylor carried on business as a coal-master, coal-merchant, and grain-dealer, or otherwise fell within the description, and not within the exception of persons liable to sequestration. In evidence of the bankruptcy, he founded upon a caption which had been obtained by Mr. Murdoch subsequent to the date of the trust, “for not making payment to the complainer of the principal sum of £120, and the legal interest thereof since due, and till payment, deducting all partial payments made to account thereof which can be legally instructed, contained in the promissory note of M'Harg and Wallace, merchants in Ayr, and the said William Taylor, dated the 15th day of February 1818,” and on which caption an execution of search, dated 2d October 1818, was returned. Mr. Taylor made appearance, and objected to sequestration being awarded, on the ground,

1. That although he was a coal-owner or coal-lessee, and as such worked the coals let to him, and sold them; yet he did not purchase coals in order to sell again, and therefore he was not within the description of persons who make their living by buying and selling, and so liable to sequestration; and that neither could he be characterized as a grain-merchant, because the only purchases which he had made were for the purpose of paying the wages of his coaliers in grain instead of money; and that although, from peculiar circumstances, he had been obliged to dispose of part of that grain in the market, yet this could not constitute him a grain-merchant in the sense of the statute.

2. That the petition for sequestration was not supported by the documents required by the statute; and, in particular, first, That the affidavit was objectionable, because it was made before an Irish Justice of the Peace, without having any authority from the Courts in Scotland; and, second, That it was made prior to the act of bankruptcy, which did not take place till the 2d of October

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1818, whereas the affidavit was dated on the 20th of August preceding.

3. That the caption was illegal; first, Because Mr. Murdoch, being an acceding creditor to the trust, was barred from doing diligence on his debt; and, second, Because it was uncertain in its terms, as it was issued for a debt, “deducting all partial payments made to account thereof which can be legally instructed;” and therefore, as the diligence was illegal, there had been no act of bankruptcy in terms of law.

To these pleas it was answered,—

1. That Mr. Taylor was an extensive dealer in coals, and that it was not necessary, according to the Scottish statute, that he should both buy and sell, it being sufficient that he manufactured and prepared coals for the market, and made a material part of his living by the disposal of them:—that, besides, he was a partner of several companies trading in Dublin, and usually designed himself ‘merchant’ there; and that it was proved by documents recovered from the consignees, that he had bought and sold grain to a considerable amount.

2. That it was quite sufficient that the affidavit was emitted before a Justice of the Peace within Great Britain or Ireland, and that no commission from the Scottish Courts was necessary; nor was it required by the statute that the execution of the caption, or other diligence creating the bankruptcy, should be prior to the affidavit:—that, besides, the execution had been postponed by a bill of suspension, which had been ultimately dismissed: And,

3. That Mr. Murdoch was not barred from doing diligence, nor was it any objection to sequestration being awarded that he had acceded to the trust, and the debt on which the diligence was done had been subsequently acquired by him:—that it was res judicata, by the refusal of the bill of suspension, that he was entitled to execute that diligence;—and that the terms of the caption were such as were usual in similar cases.

The Court, on the 11th of February 1819, awarded sequestration; and thereafter an interim factor and trustee were successively appointed, and Mr. Taylor applied for a personal protection in terms of the statute. He, however, afterwards presented a petition for recal of the sequestration, on the same grounds on which he had maintained that it should not be awarded; but the Court, on the 22d of May 1819, refused the petition, and found him liable in expenses. ^*

He then entered an appeal; but the House of Lords “ordered and adjudged that the interlocutors complained of be affirmed.”

_________________ Footnote _________________

* Not reported.

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Appellant's Authorities.—(1.)—Stewart, Feb. 15. 1812, (F. C.); Jeffrey v. Russel, 1816, (not rep.)—(3.)— Rex v. Hall, 1. Cowper, 60.
Respondent's Authorities.—(1.)—1. Bell, 368.—(3.)—1. Ross, 290.

Solicitors: J. Richardson,— C. Berry,—Solicitors.

( Ap. Ca. No. 38.)

1822