M'Gavin v Robertson

Subject_ Bankruptcy—Diligence.— A creditor raised horning and caption, and obtained an execution of search against his debtor; after a lapse of more than four months, he caused a new search to be made for the debtor, who had not, in the interim, been restored to solvency—held competent, within four months of the second search, to present a petition for sequestration under the 15th section of the bankrupt act.

The last step of the statutory diligence was done against Robertson, either when Blair incarcerated him on 6th December, 1833; or, if that could be objected to as collusive, then on 1st January, 1834, when M'Gavin obtained an execution of search against him. Blair's arrestments were not used till 28th June, and it was incompetent for M'Gavin, by the expedient of making a new search on 18th July, to create a new terminus a quo, and apply for sequestration, especially since he had allowed four months to run after his own first search, without sequestrating. 1

Lord Balgray .—It is evident that Robertson and the creditor, who used arrestments, have been acting in collusive concert with each other. On looking at the Bankrupt Act, the words appear to be quite precise. They state the requisites which must concur in warranting a petition for sequestration. I think they all concur here, and I would grant the prayer of the petition.

M'Geachie, March 2,1808; 2 Bell, 79; M'Ewan, May 27,1817 (F. C.); 2 Bell, 180; Abercromby, June 19, 1759(11811); Pollock, Nov. 17, 1769(11815), Strang, May 12,1821 (ante, 1.1); M'Math, March l, 1791; Bell's Cases, 22.