Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 FOREIGN.
Subject_3 An assignee, under an English commission of bankrupt, by obtaining decree in absence against a debtor of the bankrupt, divests him of the jus crediti, and renders every posterior arrestment ineffectual.

James Lesley
v.
John Scot

Date: 28 February 1788

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[Faculty Collection, X. 14; Dictionary, 4,562.]

Justice-Clerk. There was a blunder in the interlocutor in the case Thompson and Tabor: the Court went upon arguments not pleaded at the bar, and threw in the clause of a right to compear and compete in favour of the assignees under the statute of bankruptcy: how would the Court of King's Bench receive a like sort of interest, if produced by our factor on a sequestration, in terms of the Act 1772. The Court, in the case of Thompson and Tabor, although they found that the assignees had a right to compear and compete, yet they afterwards preferred arrestments used pendente processu. I did not like the decision then, but I must take it as it stands, and as it was explained. The decreet in absence might have been opened at any time, by a representation, and it was opened by a suspension. I see no law nor expediency for sending the creditors to an English court.

Eskgrove. Here there is an attempt to undo what has been formerly done by the Court. I do not believe that the English court would deny effect to our statutes of bankruptcy. The bankrupt here surrendered the very debt in question; and, by that means, Lesley got information of its existence, and laid on arrestment; the right of the assignee was intimated judicially and extrajudicially to the debtor. In the latter case of Thompson and Tabor, the Court preferred the arresters, not on that footing, but on the footing of an implied assignation: the Court allowed the assignees to compear and compete: could it mean that they might compete when no one appeared to oppose them? The sense of the Court was explained in the case of Bedford and Son against Vasie, where the word recover was used.

President. I should regret much were this Court to depart from the principles established in the case of Thompson and Tabor. Deeds executed according to the lex loci are good everywhere. By many English statutes the bankrupt is obliged to surrender and make over every thing to the assignees; if he fail to do this the law does it for him. A public assignment is just as good as a private one. The assignee comes into this Court with the nomina debitorum: will the Court say, we will give you no decreet? That is not said. If the assignee's right is not good, the debtor could not have paid any part safely; a decreet for payment of a balance on an open account is equal to an intimation. It is a mistake to say that the English courts would pay no regard to the claim of a factor under a Scottish sequestration.

Dreghorn. If the cause rested on the footing of the decree being notified, I should doubt whether that notification was more than a summons.

On the 28th February 1788, “The Lords preferred Scot, the assignee;” adhering to their interlocutor of the 27th November 1787.

Act. Ilay Campbell. Alt. Allan M'Conochie.

Diss. Henderland, Stonefield, Braxfield, Dunsinnan, Hailes.