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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Marshall v Irvine [1834] CA 13_179 (11 December 1834) URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0179.html Cite as: [1834] CA 13_179 |
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Page: 179↓
Subject_Bankruptcy—Diligence.—
1. Although a party be under diligence by horning and caption for debt, yet a sentence of fugitation and outlawry for non-appearance in the Justiciary Court is not equivalent to an execution of search, so as to warrant a petition for sequestration. 2. Circumstances in which, held, that a party was not liable to sequestration under either branch of section 15th of the bankrupt statute.
John M'Farlane, auctioneer at Burreltown, was the partner of a banking company, and also engaged in trade. Letters of horning and caption for debt were raised against him in March 1834, and arrestments had been executed of part of his effects in February preceding. Several arrestments on the dependence were used against him in June following, and, on the 7th of July, he was declared a fugitive and outlaw for non appearance in the High Court of Justiciary; but no execution of search was returned on the said caption till 11th November.
In the mean while (25th of August), John Marshall and Others, creditors of M'Farlane, petitioned for sequestration of his estates. This was opposed by James Irvine and Others, * his creditors and trustees, under a private trust-deed, on the ground that the statute required either diligence by horning and caption for debt, together with imprisonment, or a search “in virtue thereof;” or diligence by charge of horning, attended with arrestment, unloosed for fifteen days, or with poinding or adjudication, which last alternative reached only a limited class of persons. In both cases, the petition for sequestration required to be presented within four months of the last step of the diligence: But M'Farlane could not he brought under the first alternative, because the sentence of fugitation was not equivalent to an execution of search; and the execution of search in November being long posterior to the petition for sequestration, could not be founded on. Neither did M'Farlane fall under the second alternative, because the only arrestments within four months prior to the petition, were arrestments on the dependence, and these could not be held within the meaning of the statute, which had plainly reference to arrestments in execution, and not to arrestments in security, which were contingent on obtaining decree. Besides, the debtor required to be out of Scotland; but all the arrestments had been used prior to the sentence of fugitation, and while there was no reason to presume M'Farlane to be forth of Scotland.
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* Appearance was also made by M'Farlane, but the Lord Ordinary refused to sustain it, as he was an outlaw.
The petitioners answered, 1st, That where diligence for debt had proceeded so far against M'Farlane, that nothing but imprisonment or search remained to complete the statutory requisites, then a sentence of fugitation was equivalent to a search, as it was legal evidence that the debtor was not to be found, and a search could prove no more than this. But, 2d, Several captions for debt had issued against M'Farlane in March 1834; and as the statute had declared, in general terms, that if a person under diligence for debt, by charge of horning, was forth of the kingdom, arrestments unloosed for fifteen days should warrant a petition for sequestration, this must include arrestments on a dependence; and thus M'Farlane was sequestrable under the second alternative of the statute.
The Lord Ordinary on the bills (Lord Moncreiff) reported the case, and issued the subjoined note. *
The other Judges concurred, and the Court refused the petition.
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* “ Note.—The Lord Ordinary thinks it expedient that this case should be disposed of by the Court. If he were now to decide it. he is inclined to think that the bankruptcy has not been established within either of the alternatives of the statute. But the case seems to require hearing.
“The Lord Ordinary has thought it his duty to reject at once the instance of the outlaw as a party defender.”
Solicitors: R. Kennedy, W. S.— J. Hatton, W. S.—Agents.