Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BANKRUPT - Act 1696, c. 5.
Subject_3 The apprehension of a Debtor, and his being in custody of the Messenger upon a caption, held to be imprisonment within the meaning of the Statute. - Effect of an Act of Warding.

John Macadam of Craigengillan and Others
v.
William Macilwrath and Others

Date: 22 November 1771

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[Fac. Coll. V. 331; Dict. App. I.—Bankrupt, No. 8.]

Pitfour. It is not necessary to determine upon the effect of the Act of warding. Here Allison was in the custody of the messenger upon the caption: this is just the case of Woodstoun, determined in the House of Peers. Something, however, may be urged for the effect of an Act of warding. The Act 1696 meant to make notoriety the rule. It is true that the decision in the case of Bent's Creditors, goes the other way; but there a disposition to trustees, for the behoof of creditors, was in the field; and such dispositions, at that time, were considered exceedingly favourable, however they may have been considered since.

Monboddo. If the cause rested upon the act of warding, I should have difficulty. I do not think that an act of warding produces such notoriety as a horning and caption; neither do I think that this act of warding was ever executed. Diligence by horning and caption, and apprehending by messengers, are sufficient to establish bankruptcy. So it was determined by the House of Peers in the case of Woodstoun. The caption was never discharged: Allison was never a man of credit after it.

Hailes. It is unnecessary to inquire into the effects of an act of warding, for here there was none such. The supposed execution in effect bears, that the officer did not touch Allison by reason of his bodily distress. He ought not to have conveyed him to prison; that would have been an inhuman action meriting punishment; but neither ought he to have left him at full liberty: He ought to have taken the middle course, put him in the hands of some of the people about him, and returned the res gesta in his execution. As to the other point, I do not see the difference between this case and that of Nisbet of Dirleton joined to that of Woodstoun.

Kennet. The caption was never discharged, and therefore this case is the same with that of Woodstoun. The act of warding is not of the same notoriety with the alternatives in the statute 1696.

President. I do not think that the act of warding is sufficient, for that does not operate beyond the narrow territory of the magistrate who issues it. Besides, Allison was not apprehended upon that act: the officer left him in no custody at all. This question, upon act of warding, decided formerly.

Pitfour. Admitted the weight of the President's observation, upon the narrow territory over which an act of warding is effectual.

On the 22d November 1771, “The Lords sustained the reasons of reduction, upon the Act 1696, in respect that Allison had been apprehended upon a caption; that the caption was not discharged, and that the insolvency was sufficiently proved.”

Act. A. Lockhart. Alt. G. Wallace. Reporter, Auchinleck.

[The President wished to have the question put upon the act of warding also; but Lord Coalston objected to the determining a point not necessary, as there was no difference in opinion upon the other.]