Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION III.

Decisions upon the act 5th Parliament 1696, declaring Notour Bankrupts.
Subject_3 SECT. I.

Circumstances which infer Notour Bankruptcy.

James Man
v.
Wales and his Creditors

Date: 24 July 1702
Case No. No 168.

Horning and caption upon general letters, found sufficient to infer notour bankruptcy, joined with the other circumstances in the act. See No 113. p. 1006.

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Andrew Wales, merchant and shop-keeper in Dundee, did, upon the 14th of February 1700, grant several bonds to his creditors; and, of the same date, disponed his houshold plenishing, ware in his shop, debts, and whole moveables, for further security and payment of these bonds.

Of the same date, John Man draws a bill upon Wales, payable to James Man; and James Man draws a bill upon Wales, payable to John Man, both upon fight, and Wales accepts both, but without date, and they were protested upon the 15th and 17th days of the same month of February.

Wales' shop and plenishing are rouped by the said creditors, and James and John Mans' wholly neglected; whereupon the said James, for himself, and as assignee by John Man, raises a declarator of bankrupt, upon the 5th act, Parliament 1696. And, after a mutual probation led upon the qualifications of the said act of Parliament, for proving Wales to have been bankrupt, and reducing his disposition, it was alleged for his creditors, 1mo, The pursuer had no interest to insist upon the said act of Parliament; because he was no creditor at the time of the disposition quarrelled, which is dated the 14th of February 1700, in so far as the bills libelled on are not accepted of that date. 2do, The act requires horning and caption at the instance of some creditor, before the disposition quarrelled, which must be understood upon some decreet or special obligation; whereas, in this case, Wales was under no diligence preceeding the 14th, except by horning and caption upon general letters, which are not equivalent to diligence upon a decreet for a special debt; because escheats fall not upon general letters; and therefore men of the best credit are not solicitous to avoid them; and consequently they can be no qualifications of bankrupt.

It was answered, 1mo, The pursuer's bills are dated the 14th, and being accepted upon the same paper, the date upon the top of the bill must be presumed to be the date of the acceptance, the drawer and accepter being in the same town, and the protest taken on the 15th and 17th; likeas in the case of Street and Mason, No. III. p. 1003. it was found, that a creditor to a merchant had interest to reduce a fraudulent right, though anterior to Street's debt, 2do, The drawer of the bill was creditor at the time of the draught, which can, be instructed. 3tio, The act of Parliament requires only horning and caption; which is instructed in this case, and makes no distinction whether, upon general or special letters; neither is there any deed to distinguish; because diligence is not the single qualification, but one of three; and conform to that act, insolvency and absconding are also proven.

‘The Lords found, That the acceptance wanting date, was not presumed to be of the date of the bill, unless instructed; and that therefore the pursuer was not creditor at the time of the disposition quarrelled, and had no interest to reduce the same; but allowed him yet to prove, that the drawers of the bill were creditors; which they found relevant to sustain the pursuer's title; and repelled the objection against the horning and caption upon general letters.’ See Bills of Exchange. See No 113. p. 1006.

Fol. Dic. v. 1. p. 81. Dalrymple, No 36. p. 45.