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 Spedding
v.
Messrs Hodgson and Donaldson

Date: 9 August 1785
Case No. No 187.

In this case, likewise, the execution of search sustained as evidence. There is a præsumptio juris of absconding, if a person notoriously insolvent be absent from his house; but this presumption may be elided by contrary proof.

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A messenger having gone to the house of Thomas Bushby, in order to execute a caption against him, and having searched for him there, without being able to find him, reported this proceeding in his execution.

In a competition of Bushby's creditors, it was afterwards debated, Whether the above circumstances, joined to his insolvency, were sufficient to bring him under the description of the statute of 1696.

Observed on the Bench: The absence of a debtor from his dwelling-house at a time when he is notoriously insolvent, will create a præsumptio juris of absconding. Not being, however, a præsumptio juris et de jure, it may be elided by a contrary proof.

The Lords found, ‘That Thomas Bushby, by the execution of search produced, fell under the description of the statute 1696.’

Lord Ordinary, Alva. Act. Elphingston. Alt. G. Fergusson. Clerk, Home. Fac. Col. No 229. p. 356.