Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk of Session, One of The Reporters For The Faculty.
Subject_2 FRAUDULENT-BANKRUPT.

Creditors of John Blacklaw
v.
Him

Date: 7 March 1777

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John Blacklaw, a tea merchant in Edinburgh, retired to the Abbey as a bankrupt, and afterwards petitioned the Court for a sequestration of his personal estate on the late statute; which he obtained, and a factor was named. It appearing to the Creditors that he had purchased teas, since October last, to the amount of L.900 sterling, while he delivered up only, of tea and effects, to the extent of L.400, and that he was seen possessed of bank notes, gold, watches, and other articles of value, presented a written petition, praying the Lords to grant warrant for bringing him from the Sanctuary, to be examined in presence. The Lords granted warrant accordingly. In his examination it appeared that he had lodged considerable quantities of the tea in different places, which he was exceedingly unwilling to discover,—as he insinuated, for fear of their being seized, and the people, in whose houses they were, brought to trouble. He named, however, some; and, in a word, behaved so, that the Lords committed him to the tolbooth for further examination against the next day; and they ordained him to be kept in close custody, and no person to have access to him, except the lawyer and agent for the Creditors, and oertain other lawyers whom the Court recommended to give him advice. The Creditors remaining unsatisfied, (11th March 1777 they presented a petition to the Court, with a signed condescendence of facts,—which they prayed the Court to find relevant to support a charge of fraud against him; and to allow a proof thereof, and of any other facts which might come to their knowledge, and all circumstances relative thereto; and in the meantime, that they would grant warrant for his incarceration in the tolbooth of Edinburgh, therein to remain till liberated in due course of law. The Lords pronounced this interlocutor:— “Grant warrant for serving this petition, with the condescendence annexed thereto, upon the within mentioned John Blacklaw, by delivering to him, personally, a full copy of said petition and condescendence, and this deliverance thereon; and appoint him to give in answers thereto, into the boxes, on the 26th day of April next; and allow the petitioners to give in replies against the 12th of June next; and the Lords grant warrant to the macers of Court, or any of them, to incarcerate the said John Blacklaw in the tolbooth of Edinburgh, therein to remain until he shall be liberated in due course of law;—and grant warrant to the Magistrates.”

John Blacklaw immediately petitioned to be admitted to bail; which the Lords granted.

Answers having been given in to the petition, with replies and duplies, the cause was enrolled in the summar roll for advising, when it occurred to the clerk that there was a material defect in the proceedings in point of form; for, that his Majesty's advocate, as calumniator publicus, was no party to the complaint, which inferred the pains of fraudulent bankruptcy, in terms of the late bankrupt statute. The defect was the more material, that when a similar one had been observed in a former case, Fac. Coll. No. , it was found that it was not suppliable, and that the advocate's after concurrence would not draw back or rehabilitate it.

The Lords ordered the cause to be struck out of the roll, in order that the complainers might consider of this observation. The consequence was, that the complaint was not more insisted in.