Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Andrew Russel's Executors
v.
James Baird

Date: 26 November 1708

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Lord Pollock reported the Executors of Andrew Russel, in Rotterdam, against James Baird, son to Alexander Baird, late bailie of Edinburgh. There had been a long tract of copartnery betwixt Russel and Baird, with one Turnbul and Thomson in Stockholm, by the space of thirteen years, wherein the effects were consigned to Bailie Baird, extending to one hundred thousand pounds and more; and Russel's executors having raised a process of count, reckoning, and payment, for their share of that balance, against Bailie Baird in his lifetime; and he being ordained to produce his count-books for constituting the charge, he deponed, That he had kept none for six or seven years bypast: which was urged as a great prejudice against him; seeing, by the laws of Italy, and other trading nations, mentioned by Beneventus Stracca, De Mercatura, it is a criminal fraud in a merchant not to keep clear books anent his trade. During the dependence the Bailie dies; and now there is a bill given in by Russel's executors, representing, that his son was tracing the same indirect footsteps with his father, to palliate, abstract, and embezzle all his effects; and that, on his death, the haill cash and ready money lying beside him, upwards of a thousand pounds sterling, was secretly conveyed out of his house to some trustee; and, on his deathbed, he indorsed his bills and bank-notes to a great value: his silver-plate, and other valuable moveables, were sent away to some private place, with all his bonds, securities, and instructions of debt, and the bulk of his goods and merchandize in his cellars and warehouses were removed, put out of the way, and disappear, which is done to defraud his creditors, and to abscond them out of the reach of lawful diligence: And, in regard of such dishonest methods, craves a summary warrant to cite the persons condescended on, to depone where these goods are hid; not to infer any riot or crime against them, but allenarly to expiscate where they are, to the effect they may be confirmed, or otherwise affected by creditors' lawful diligence.

Answered for Mr Baird,—That the desire of it was most irregular, extraordinary, and contrary to all form, unless the same came in by the course of a process; for this is to begin at execution, and to believe their misrepresentations before they be proven, being an expiscation super inquirendis, against all and sundry; and is liker to a defamatory libel and French manifesto, than an application to a civil judicatory tied to the forms of law; and extraordinary remedies are never to be recurred to, save when all ordinary ones fail. But here law has introduced sundry remedies,—as creditors confirming themselves executors-creditors, arresting the effects, the gift of escheat, datives ad omissa. Like-as, thir very pursuers have raised a process of transferring, which will come in by course within a few weeks; so a little patience will bring this affair to a regular trial, without breaking all the forms ever known in this kingdom, and without introducing the Spanish Inquisition, a name so formidably dreadful, that it is a terror to all the rational, sober part of the world; especially when remedies are proposed infinitely worse than the disease.

Replied,—Though forms are both useful and necessary to be observed, yet they must never be so adhered to as to destroy matter; and here justice craves discovery of one of the boldest tricks that has been set on foot in this age, to make a man in a moment bankrupt, who died in the reputation of being very rich; so that extraordinary diseases must have as extraordinary cures; and this is no more than what the Lords, by their officium nobile, may do. Yea, to come lower, it is what the Commissaries do every day, and every Justice of the Peace, to secure the goods and effects of defunct debtors from abstraction and embezzlement, and to discover all sinistrous practices to hide or conceal their goods,—the creditors being in damno litando, and only craving the examination of his accomplices, not to infer any guilt, but only ad rimandam veritatem: and how oft do the Lords, prœter communis juris regulas, examine parties before processes come in, to lie in retentis, that probation may not perish. And this can wrong nobody but those who design to cheat their creditors.

The Lords, in respect of the singularity of this case, granted a summary warrant for trying when his money, bonds, bills, bank-notes, silver-plate, and other valuable goods were absconded, not against all at random, but conform to the condescendence given in; to this effect allenarly, that they may be made forthcoming to the creditors, nearest of kin, and all others having right thereto.

Vol. II. Page 466.