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Scottish Court of Session Decisions >>
Yaxly Davidson v Anna Brown. [1737] Mor 1092 (29 June 1737)
URL: http://www.bailii.org/scot/cases/ScotCS/1737/Mor0301092-172.html Cite as:
[1737] Mor 1092
Decisions upon the act 5th Parliament 1696, declaring Notour Bankrupts.
Subject_3 SECT. I.
Circumstances which infer Notour Bankruptcy.
Yaxly Davidson v. Anna Brown
Date: 29 June 1737 Case No. No 172.
The act 1696 reaches cases where the bankrupt flies before the days of the charge are clapsed.
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In the reduction betwixt these parties, of an heritable bond on the act 1696, as having been granted by Andrew Brown within the sixty days of his bankruptcy, it was objected, That, from the proof which had been adduced, it appeared that the granter, who was a sailor and merchant, had gone abroad, in the way of his business, before the caption was taken out, so that he could not be said to fly or abscond, in terms of the act, from diligence which was not taken out until after he had left the kingdom. If indeed he had retired into the Abbey before the caption, it might have implied a confession of bankruptcy; but the following out the course of one's trade cannot admit of such a construction.
Answered, Diligence by horning and caption are named in the act before the alternatives of flying, absconding, &c. because that is the case which most commonly happens. But it does not follow, That one, who goes off upon the horning, without waiting till the caption can be got, which might perhaps be a hindrance to his design, can never be constitute a bankrupt, so as to have his unjust preferences reduced; and with what view Andrew Brown went off, is not easy to determine, that being actus animi: but, from the several circumstances of this case, it is presumeable, the fear of being thrown into prison was the reason why he fled, which is the more probable, as he has continued for two years out of the country, longer than his ordinary business as a merchant can be supposed to detain him; and, if the act shall be otherwise interpreted, it will open a door to many frauds.
The Lords sustained the reason of reduction the act 1696.
