Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION IX.

Foreign Decrees, and other Judicial acts.
Subject_3 SECT. IV.

English Commission of Bankrupt.

Ogilvie
v.
The other Creditors of Aberdein

Date: 13 November 1747
Case No. No 85.

An arrester in Scotland preferred to the commissioners of bankrupt.

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John Aberdein a Scotsman, residing in England, became bankrupt, and having a commission of bankruptcy awarded against him, complied with the terms thereof. Thomas Ogilvie, one of his creditors in a debt contracted in England, entered his claim before the commissioners of bankruptcy, which was refused in respect of an arrestment he had laid on the bankrupt's effects in Scotland. Thereafter Ogilvie pursued a furthcoming on this arrestment, wherein compearance was made for the assignees of the commissioners of bankruptcy in England, who craved to be preferred, in respect the common debtor resided in England, and became bankrupt there, and as mobilia sequuntur personam, the preference ought to be judged by the law of England, by which all arrestments fall by the commission of bankruptcy.

On the Lord Elchies's report for advice, the Lords were of opinion, ‘That moveables in Scotland could only be attached by diligence issuing out of the courts of Scotland, and that therefore the preference could be judged only according to the law of Scotland; and preferred the arrestment.’

Fol. Dic. v. 3. p. 226. Kilkerran, No 4. p. 206.