United Kingdom House of Lords Decisions

The Lord Ordinary pronounced an articulate interlocutor on all the points in dispute, and specially found “that by the execution of search produced the company of Richard Scougall and Co. was, on the 16th August 1814, rendered legally bankrupt in terms of the act 1696.” His Lordship, at the same time, issued this note:—

“The question whether Scougall and Co. were made legally bankrupt on the 16th August 1814, has been treated as involving various points. The Lord Ordinary is of opinion that there is but one point of difficulty. The letters of caption founded on (which were afterwards the ground of the sequestration) have the name of ‘Richard Scougall’ in the Will written on an erasure, in connexion with the names of the other persons charged, and the Lord Ordinary is sensible of the difficulty thereby created. The case of Cowan v. Watt, March 6th 1829, was quoted to him. That was a case of a warrant sub meditatione fugæ, which being an extraordinary remedy, liable to the strictest construction, the rule adopted might not be held to apply to cases of ordinary diligence. But the only question tried was, whether a bill of suspension and liberation should be passed. That did not necessarily determine the illegality of the warrant; it only imported that there was enough of doubt to render it just to liberate the prisoner. Upon the expede letters, the warrant might still have been found legal after full discussion, and the party have been recommitted. In the present case it appears that in narrating the letters of horning the name of Richard Scougall and Co., and of Richard Scougall, as an individual, are distinctly set forth as the parties charged,

Page: 522↓

without any erasure; they were the acceptors of the bill, the other parties to it were also charged, and there is an erasure in the part where their names are written. But this clearly is of no consequence. Then, after a full narrative of the letters of horning, the warrant or Will is, “to pass and apprehend the said” and the names “Richard Scougall, James Brunton, and James Thomson,” are written on an erasure. The letters of caption (signed by Mr. John Russell, W. S.) are dated 16th August 1814, and the execution on the back thereof is of the same date. There is no averment on the record that the writ was altered after passing the signet, and no ground to suspect any fraudulent purpose. It may be taken, therefore, as a blunder very inconsiderately corrected before the letters were issued. Under these circumstances, the Lord Ordinary, though not without hesitation, has come to the opinion, that, as the first part of the letters of caption shows, beyond all doubt, that they were meant to be directed against Richard Scougall, as a partner of the company, and as on calling for the letters of horning he finds, from the extract, that they and the execution of charge did precisely warrant the caption, as it now stands, it would be too strong to hold that the execution of diligence (publicly and judicially acted on, and never complained of) was rendered void and null by this fault in the transcription of the letters of caption. It was argued to the Lord Ordinary, and he thinks with effect, that if the Will had stood blank in the names, after the words ‘the said,’ or had borne “the said persons,” or ‘the persons above designed,’ the warrant would have been unexceptionable; and that in substance

Page: 523↓

the case as it stands would be the same if the names were held pro non scriptis. The point however is delicate and difficult, in so far as it might involve a question of personal liberty.”

The respondents having reclaimed to the Inner House, their Lordships, on the 13th February 1833 ^*, pronounced this interlocutor:—

“In respect that the caption produced to instruct the bankruptcy of Richard Scougall and Co. is not legal evidence to be received of the requisites of the act of parliament made in the year 1696, c. 5., libelled on, the names of the parties mentioned in the Will being written on an erasure, alter the interlocutor of the Lord Ordinary reclaimed against, and assoilzie the defenders from the conclusions of this action, and decern, but find no expenses due.”

Duncan appealed.

Appellant.—Although the caption may be improbative with regard to Brunton and Thomson, whose names were written on erasures both in the narrative and in the Will, yet it is not so as to Scougall; his name is set forth in the narrative without erasure, and the Will could refer to him and to no one else. Besides, even if the name should be held blank, still as the relative term “said” is not written on an erasure, and as no other person could be referred to than Scougall, the objection is unavailing. Such a reference from one part of a document to another is quite legitimate, and has been repeatedly sanctioned. ^†