J A CHEYNE and L MACKERSY v WALKER (Court of Session)

Thereafter, Cheyne and Mackersy presented a petition for sequestration of Anderson's estate, which was opposed by Walker (his cautioner) who had obtained a security, which would have been affected by the sequestration.

The case having come before Lord Gillies, as Ordinary upon the Bills, his Lordship ordered cases.

That the statute required that the person against whom sequestration was directed should either be in prison, should have absconded, or have removed from the country. But, in the present case, there was no proof of any of these circumstances; neither was there any execution of search produced; and, notwithstanding the sentence of outlawry, he might still be in this country; Bell , vol. ii. pp. 172 and 174.

That the sentence of outlawry against Anderson, if not direct and conclusive, was at least prima facie evidence of the fact that the debtor was furth of the kingdom; and this was all that the statute required. A messenger's execution of search would not, per se , prove the fact, but would only establish that the messenger had not found him at home. If the fact of his being abroad was denied, it was just one of those which required to be proved aliunde; Bell , vol. ii. p. 331, 4th edit.; and the evidence afforded by the sentence of outlawry was in the same situation.

Upon the merits of the opposition, however, their Lordships were unanimously of opinion that the objections arising from the execution of the trust-deed, and from the terms of the contract of copartnery and of the bond of caution, were unfounded.