Samuel Cole and others v. Ephraim Flammare and Son — Memorial, 28 Jul 1772

Untitled M E M O R L A L July 28 1772. F O R Samuel Cole of Covent-Garden, Mercer, and William Cole, brother of the said Samuel Cole; Daniel West, Obadiah Legrew, Timothy and William Ravenhill, James Sorel, Peter Serret, and Robert Ravenhill, all Silk-weavers, or merchants, in or near London, credi- tors of the said Samuel Cole, and John Gloag Mer- chant in Edinburgh, their Attorney and Trustee; A G A I N S T Ephraim Flammare and Son, Silk-weavers in London. T HE memorialist Samuel Cole, several months ago, sent, James Hollingpriest, his clerk, down to this country with a quantity of silks, then amounting in value to a- bout three thousand pounds Sterling: and shortly there- after his brother William Cole arrived here in the character of factor, or institor, for disposin g of these goods; for which pur- pose he hired a ware-room, and obtained a licence to trade in the Canongate. Not long after this transaction, Ephraim Flammare and Son, silk-weavers in the liberty of Norton-Falgate, in the county of Middlesex, and creditors of the memorialist Samuel Cole to the extent of about nine hundred pounds Sterling, ha- ving, from the vicinity of their residence, discovered that his affairs were about to go into disorder, with a design of attaching the si lks above mentioned, set out for Scotland upon the 27th day of May last, and arrived in Edinburgh upon the 30th of the same month; whilst the memorialist having, in the mean time, com- mitted mitted an act of bankruptcy, and learned the intention of Flam- mare’s hast y expedition, with a view of doing equal justice to all his creditors, wrote the following letter to Samuel Cole, his bro- ther, and instittor redding in this country. " Since my last, I hear Mr Flammare is gone, and I suppose is arrived to attach the goods; a thing I know not whether he had a right to do without my consent, and I never gave it; on the other hand, I committed an act of bankruptcy before he went from London, as will be proved: therfo, before you give up the goods, have the opinion of the most able advocate you can. Mr Swinton's bro- ther is one from whom I will get a letter to-morrow on that subject; but if you have not given up the goods, aplydi- rectly." No sooner had Mr Flammare arrived in Scotland, than he ob- tained an admiral-precept against the memorialist Samuel Cole: upon which arrestments, jurisdictionis fundandæ causa, were imme- diately used in the hands of Mess. William Cole and Holling- priest, the memorialist ’s clerk and institor, and of James Reid coach- maker in Canongate, the proprietor of the ware-room where the silks lay; and in the afternoon of the same day, common arrest- ments, for attaching the goods themselves, were also used in the hands of the same persons; Mr Cole, the debtor, having been previousl y summoned on the admiral-precept, at the market-cross of Edinburgh, pier and shore of Leith; and two days thereafter, upon an application to the judge-admiral, to prevent the goods from being disposed of by sale, they were sequestrated and inven- toried. William Cole, as well as brother and institor, being also credi- tor to the memorialist Samuel, of this date, likewise took out an admiral-precept, upon which a regular citation followed, and re- gular arrestments were used; and finally, of this date, admiral- precepts were also used, and arrestments laid on, at the instance of the other creditors, whose names are prefixed to this memorial, and of John Gloag merchant in Edinburgh, their common at- torney, and trustee. Such were the steps that had been taken, and such the diligen- ces that had been used against Samuel Cole’s eff ects in this country: when his brother and instior, William Cole, having, agreeable to the directions in the letter above mentioned, advised with Mr Swinton as to what was proper to be done, in order to procure an equal equal distribution among all the creditors, the laudable intention o f the common debtor, which he was anxious to fulfil; by Mr Swinton’s advice, and with his approbation, a petition was pre- sented, in the name of all the memorialists, praying your Lord- ships, “ in terms of the statute passed last session of parliament, to sequestrate the foresaid parcel of silks now lying in Canon- gate, and to appoint a factor thereon, for behoof of all the creditors; and to give such other orders and directions relative thereto, as the said statute appoints, and to your Lordships shall. seem meet.” At moving this petition, compearance was made for Flammare and Son, who craved leave to give in answers. And your Lord- ships “ having heard this petition, and what is above set forth, ordained the procurators for said Daniel Flammare and Son, to give in answers, &c.” Answers were given in accordingly, in which the desire of the petition was objected to as irregular and incompetent;— irregular, in respect that no written mandate had been produced from the petitioner Samuel Cole, though residing out of Scotland;— incompet, in fo far as it was alledged, that the statute subsumed upon in the petition, solely respected insol- vent debtors in Scotland, and neither could, nor ever was, in- tended to apply to the case of an English debtor, who might occa- sionally have effects in this country. The petitioning creditors, it was lastly observed, (one of them, William Cole, excepted), had given no regular mandate; and that at any rate, the common debtor was not under diligence by letters of horning, duly de- nounced and registrate, which, in the case of an application for sequestration proceeding from creditors, was essentially requisite to bring a debtor out of Scotland, within the enactments of the late statute. When the petition and answers came to be advised, nei- ther the truth nor relevancy of the last objection was con- tested. It was only observed, that the common debtor's applica- tion, for the laudable purpose of doing equal ju stice to all his creditors, favourable in itself, was not the less so from having the sanction and approbation o f his creditors; and to remove every exception that could be supposed against the authority for craving sequestration in the common debtor’s name, your Lordships were craved to delay giving judgement upon the petition and answers, till such time as the steps which had been taken could be commu- nicated to him, and his sentiments in regard to them known. Your Your Lordships were accordingly pleased to supercede advising the petition till the 16th instant, and thereafter pronounced the fol- lowing interlocutor. “ The Lords ordain memorials to be given in by both parties upon the whole points mentioned in the pe- tition and answers,” &c. In obedience to the above interlocutor, the following memorial is humbly offered upon the part of the petitioners, or rather up- on the part of Samuel Cole, the common debtor, for the joint be- hoof of his creditors; for, as already mentioned, it is acknow- ledged, that the application for the sequestration in the name of the creditors, from defect of diligence, falls not within the terms o f the late statute. The objection to the application for sequestration in the com- mon debtor’s name, consi sts of two branches. First, It is alledged to be iregula, upon the supposition of no written mandate having been produced from him, though residing out of Scotland, 2dly, Incompetent, upon the supposition that the late statute respects only insolvent Scots debtors, and can- not be extended to English debtors, though they should hare ef- fect s in this country. These separate branches shall be separately considered. And in regard to the your Lordships will, in the first place, observe, that William Cole, brother to Samuel the common debtor, came down to this country, and all along acted in the character of institor; whence it is humbly submitted, that the powers belonging to him in that capacity were sufficient to warrant an application of this kind. — Though the silks in reality belonged to his brother, he could undoubtedly, either in his own or his brother’s name, have transferred the property of them, and granted a discharge for the price. His obligations respecting them would have been binding upon his brother; and had these silks been spuilzied or stolen, in an action of spuilzie, or prosecu- tion for theft and restitution, no mandate would, with submis- sion, have been necessary to intitle him to act in the real proprie- tor’s name. But, 2dly, The memorialists beg leave to maintain, that the letter to William Cole above narrated was a written mandate, and sufficient authority for every step of judicial procedure in regard to the silks; and that if a mandate of that kind is to be rejected as informal, every foreigner, nay every person unacquainted with st y le-books and forms of procedure, and who does net reside here, here, must be debarred from appearing as an actor or petitioner in court. When a merchant, for instance, or a country-gentle- man, authorises an attorney or procurator to prosecute a claim or recover a debt, it would be the height of injustice and absurdity to expect, or require, that he should specifically authorise the several steps that are to be pursued, o f which he must be presu- med ignorant; that he should grant an explicit mandate for cra- ving a sequestration, arresting, poinding, &c. A merchant writes to his attorney to do the needful; a country-gentleman, to attend to such or s uch an affair; and in this manner the doer is fully warranted to carry on the most rigorous diligences of the law. To give a case precisely sim ilar to the present: Let it be supposed, that upon an occurrence new and difficult, a gentle- man, unacquainted with the peculiar laws and customs of this country, writes to his correspondent and near relation what he willies to be done, and what avoided, in regard to certain of his effects situated here, directing him at the same time to advise with an able lawyer, from a diffidence of his correspondent’s skill in law-affairs; such a letter, with submisio n, implies a clear mandate to do the needful, or act in every respect agreeable to the lawyer’s advice; and such is in reality the letter which gave rise to the present application for a sequestration in terms of the late statute. “ Mr Flammare is gone, and I suppose is arrived to at- tach the goods; a thing I know not whether he had a right to do without my consent, and I never gave it, &c.” “ Before you give up the goods, have the opinion of the most able ad- vocate you can. Mr Swinton’s brother is one from whom I will get a letter to-morrow on that subject; but i f you have not given up the goods, apply directly.” From a subtilty peculiar to their law, the office o f an attorney or procurator was long unpermitted among the Romans; and with them in civil causes, as with us in criminal, the party be- hoved to be personally present. In process of tune, cognitires, as they were termed, were introduced, to whom the conduct of the cause was committed; but still the prefence of the constituent was required. At last, a pretorian edict authorised the office o f at- tornies, or procurators; from whom a mandate, agreeable to mo- dern practice, was required. Rigid observers however as they were of forms and formulas, to this office no form of a mandate was annexed; the consent of the constituent was held sufficient, by whatever whatever mode, or however inaccurately, expressed. “ Procurator autem, vel omnium rerum, vel unius rei, esse potest constitutus, vel coram, vel per nuncium, vel per epistolam,” l. 1. § 1. D. De procuratoribus. — “ Mutus et surdus per eum modum qui proce- dere potest, procuratorem dare non prohibitum,” l 43. ibidem. Indeed by the Roman law, in the present case no mandate would have been exacted: for the general rule as to procurators contained an express exception of parents, brothers, & c.; who, without any mandate, were allowed to officiate in that character, though the cautio de rato seems to have been exacted from them: and even when a mandate, in a common case, was so inaccurate as to be scarce intelligible, and rendered it a moot point, Whether the business was committed to the person appearing as procurator, or not? nevertheless he was admitted upon giving the cautio ratihabitionis. And this leads the memorialist, in the last place upon this branch of the cause, to observe, that should your Lordships still entertain any doubt of William Cole’s being intitled to apply for sequestration, in name of his brother Samuel, in virtue of his of- fice as his brother’s institor, or the letter above narrated, the ratiha- bition contained in his power of attorney, now in process, is equal to an original mandate, and entirely removes every imaginable difficulty upon that score. “ Licet verum procuratorem in judicio rem deducere verissimum est; tamen, et si quis, cum procura- tor non esset, litem sit contestatus, deinde ratum dominus ha- bucrit, videtur retro res in judicium recte dedudta,” l. 56. D. De judiciis. The power of attorney is in the following words: Know all men, by these presents, from me, Samuel Cole of Covent-garden, mercer. Whereas I having become insolvent in the month of May last, a commisio n of bankruptcy was there- upon sued out against me, and asignees under it appointed; and Ephraim Flammare and Son, of the liberty of Morton-Falgate, in the county of Middlesex, weavers, my creditors, having, about the time of my bankruptcy, used diligence for attaching a parcel of silks belonging to me, then in Scotland, under the charge of William Cole my brother, he the said William Cole, in vir- tue of general powers from me, and in concert with Mr John Gloag of Edinburgh, merchant, attorney and trustee for cer- tain of my other creditors, as well as for my asignees under the commisio n of bankruptcy, did lately, in my name, apply to to the Lords of Council and Session in Scotland, by petition, praying their Lordships to sequestrate the foresaid parcels of silks, then lying in Canongate, and to appoint a factor there- on, for behoof of all my creditors; and to give such other or- ders and directions relative thereto, as the late statute in that behalf made appoints, and to their Lordships should seem meet: and seeing I am, and always was, desirous to do every thing in my power for obtaining an equal distribution of my effects amongst my creditors; and that it may be necessary for me to grant a formal and special power for carrying on, and completing, before the court of session, the sequestration of the foresaid silks, and otherwise acting thereanent: Therefore I, by these presents, nominate and appoint the said Mr John Gloag my true and lawful attorney in the premises, hereby ra- tifying, homologating, and approving of the foresaid appli- cation already made in my name to the court of session, for sequestration of the foresaid silks,” & c. The memorialists shall detain your Lordships no longer upon this first branch, but proceed to the second, a question of great importance: for if the objection is well founded, and i f the late statute can neither, from the direct words of it, nor ex paritatc ra- tionis, be extended to the effects of a debtor situated in Scotland, because he is also a trader and residenter in England, the conse- quences will go much further than may at first be apprehended, and this country will have less reason, than is generally imagined, to congratulate themselves upon the new bankrupt law; at least ca- ses will every day occur, to which the salutary regulations of it will not be applicable; and the old procedure, which it terms injustice, will st ill regulate the distribution of many a bankrupt’s effects. In considering this important question, and the application of it to the case in hand, it is necessary that your Lordships should attend to the situation of the common debtor’s effects, when, in terms of the late statute, he applied for a sequestration. Mr Cole, as a trader, had sent these silks down to be sold in this country; they had been lodged in a ware-room, hired for him in that view; upon admiral precepts, various arrestments, jurisdictionis fundandæ causa, had been used; Mr Cole had been sum- moned at the pier and shore of Leith: in a word, the goods were to all intents and purposes upon the same footing as the goods o f a a merchant in this country, subject to the diligence of every cre- ditor, and under the jurisdiction, and subject to the orders of the Scottish court. Creditors could, nay actually had, arrested them. Upon these arrestments, actions of constitution and of forthco- ming could have followed, in which Mr Cole, like any Scottish debtor, would have been summoned to appear for his interest; and had the ware-room been his own property, the proper method of attaching the goods seems to have been by a poinding, proceed- ing upon a decreet, and charge of horning at the pier and shore of Leith. In this situation, liable to be carried off by the dili- gences of arrestment and poinding at the instance of one favour- ite or active creditor, to the prejudice of all the rest; or, in the words of the statute, “ to the disappointment of that equality which ought to take place in the distribution of the estates of insolvent debtors among their creditors,” with what ju stice, or upon what prin- ciple, can it be maintained, that a statute, in direct words decla- red to extend to all debtors who know themselves to be failing in their credit and circumstances, excludes from its salutary regulations goods situated in Scotland, subject: to every diligence, and regu- lated by every form of procedure hitherto known in the Scottish law? A construction of the statute so partially illiberal, is clearly reprobated by the whole tenor, and particularly by the Rubric and narrative of the act. The Rubric runs thus: “ An act for rendering the payment of the creditors of insolvent debtors more equal and expeditious, and for regulating the diligence of the law by arrestment and poinding," &c. And the narra- tive or preamble is in the following words. “ Whereas, by the laws now subsisting in that part of Great Britain called Scotland, the personal estates of such debtors as become insolvent are generally carried off by the diligences of arrestment and poind- ing, executed by a few creditors, who, from the nearness of their residence to, and connection with, such debtors, get the earliest notice of such insolvency, to the great prejudice of cre- ditors more remote and unconnected, and to the disappoint- ment of that equality which ought to take place in the distri- bution of the estates of insolvent debtors among their credi- tors; therefore, to remedy such injustice and inequality in time coming, and to render the payment of the creditors of insolvent debtors more equal and expeditious," &c. It It will not escape observation, that the objection contains in g remio, a manifest absurdity and contradiction. Flammare and Son, English creditors, tell your Lordships, that the law of Scot- land, as established by the late aft of parliament, cannot regulate the distribution of the effects of an English debtor situated in this country, because he is an Englishman, and his creditors are Eng- lish; and yet, in the same breath, they themselves, English cre- ditors, maintain, That “ the preference of Mr Cole’s creditors upon the goods in question shall be regulated by the common law of this country.” In plain English, that a question subject to the determination of the laws of Scotland, must be decided by the exploded Scots statutes and practice, which the legislature has now declared inequality and injust ic e; and that your Lordships can pay no regard to a new statute calculated for redressing the ine- quality and injustice of the former practice and law. But further, though Mr Cole, in point of residence, is indeed an English trader; yet it is submitted to your Lordships, that by sending goods here for sale, he also commenced a Scots mer- chant, at least that he is in the same situation with regard to these goods. From the diligence which had been u sed, from the nexus created upon them, Mr Cole, quoad these effects, became a- menable to the courts of this country; and in relation to them could either sue, or be sued. Had he paid the debts arrested for, or found proper caution, he could undoubtedly have asked and obtained from your Lordships letters of loosing arrestm en t: and it is equally certain, that he would have been a proper party as a defender in a process of constitution, forthcoming, or the like In a word, he had here a relative forum, though residing upon the other side of the Tweed. Indeed the simple act of petitioning your Lordships for a sequestration, implied in it a prorogation of ju risdiction, and made him, by his own free deed, as a native in every question respecting the disposal of the silks, even independ- ent of the arrestments, juris dictionis fundandæ causa, formerly men- tioned. And this leads the memorialist s to consider the most material part of Flammare and Son’s objection, viz. That many of the principal enactments o f the statute are not applicable to a debtor redding in England; from which it is inferred, that to such a per- son the statute itself was not meant to apply. Upon a petition for sequestration (say they) at the instance o f a creditor, your Lord- ships ships are authorised and required to grant a warrant for citing the debtor to show cause why sequestration should not proceed; and if no sufficient cause is shown, the court is forthwith to sequestrate, appoint a factor, ordain the debtor to pro- duce his books and papers, to make a full discovery of his estate, heritable and moveable, where-ever situated, and to grant a disposition of his whole personal estate to the factor, for the benefit of his whole creditors; and if the debtor refuses to o- bey such orders, the court by imprisonment may compel obedi- ence. If the debtor is already imprisoned, the judges can grant warrant for bringing him personally into court, and may give him a personal protection, if they see cause. By another branch of the statute, (continue the objectors), where the application to sequestrate is from the debtor himself, the court is ordained to proceed “ to sequestration, appointing a factor, and to do all o- ther things required by that act to be done, when sequestra- tions proceed on the petition of creditors in manner before di- rected.” In the event of a fraudulent concealment subsequent to sequestration, or the bankrupt’s not complying with the requi- sites of the statute, the court is further authorised to punish him as a fraudulent bankrupt, and to exclude him from the benefit of a Cessio honorum, &c. From which several clauses of the statute the objectors contend, “ That the sole object of the legislature is Scots debtors, subject to the jurisdiction of your Lordships; bound upon your Lordships citation to appear in court, to pro- duce their books and papers, and to make a surrender and con- veyance of their whole personal estates, where-ever situated, to a factor named by your Lordships, and liable to imprison- ment, and the highest corporal punishments, death alone ex- cepted, if they refuse to comply with the requisites of this act.” The above is a fair state of the objectors argument; and as your Lordships will observe, that the several clauses of the statute there founded upon are all calculated for the great object of an e- cual distribution among the creditors, and a full discovery of the bankrupt’s effects, the argument truly amounts to this, That be- cause your Lordships, from the particular situation of a bankrupt, cannot do every thing that might be wished for the common be- nefit of the creditors, therefore the statute is to be discarded, and every thing beneficial to the creditors left undone. But But this proportion requires to be more attentively considered; for i f the argument of Flammare and Son is conclusive, it will sap the firmed foundations of this statute, or at least lop off many of the most material branches. By the statute now under consideration, it is provided, “ That i f any debtor out of Scotland, who cannot be imprisoned by rea- son of privilege, shall be under diligence by letters of horn- ing duly denounced and registrate, and shall have his or her personal estate, or any part thereof, attached by arrestment, it shall be lawful to the creditor or creditors at whole instance the laid diligence proceeds to apply to the court of session, by a sum- mary petition, for a sequestration of the debtor’s estate; which court is hereby authorised and required, upon such application, and production of debt and diligence aforesaid, &c. &c. &c. to grant warrant for citing the debtor or debtors, &c. by deliver- ing to him, her, or them, a copy of the petition, personally, or by leaving it at his, her, or their dwelling-places; or i f he, she, or they, are out of Scotland, by affixing copies upon the market-cross of Edinburgh, to appear in court within the time specified in the warrant for citation,” &c. & c. The statute then proceeds to authorise your Lordships to sequestrate, name a factor, compel a fair discovery of effects, delivery of books and writings, and a total disposition, &c. as already mentioned. Now, let a case be supposed, which has frequently happened, that a considerable Scottish merchant becomes bankrupt when he is out of this coun- try, perhaps in England, in the prosecution of more important mercantile transactions, or absconding with no unfair views as to his creditors, but merely to avoid the disgrace of appearing in the character of a bankrupt at home; such a person would undoubtedly fall within the direct view and enactment of the statute, and yet be liable to the same or more material objections than Flammare and Son have stated in the present case. Suppose, with the honed inten- tion of doing equal ju stice to all his creditors, the application made in the bankrupt’s own name, by a Flammare aiming at a partial preference, might it not be objected, that this debtor out of Scot- land was not amenable to the courts of this country, or liable to the compulsitors or punishments which your Lordships by this sta- tute are authorised to inflict? A debtor residing in England, or absconding and lurking in concealment, upon your Lordships or- der, could not be compelled to produce his books and papers, and to to make a fair and full discovery of his effects, where-ever situa- ted; a considerable part of them being perhaps situated in Eng- land, what, at any rate, would such a discovery avail? Your Lordships could not imprison him for contumacy, nor oblige him to grant a disposition to your factor. His conduct, however fair, could not afford him a personal protection in such circumstances; nor could such a one be punished for the grossest acts of fraud. Neither, in the case supposed, would it make any variation, if the petition for sequestration were to proceed from a creditor having the diligence against his absent debtor which the statute has pre- scribed. The several objections juft now alluded to would meet him. He might be told, that the debtor was not within’ the regulations of the statute; and besides, would be liable to a peculiar inconvenience, which, if the memorialists are not mistaken, mult be an insurmountable obstacle to a sequestration, and equal distribution of the common debtor’s effects, as often as the appli- cation proceeds from a creditor possessed of that diligence which the law requires. For your Lordships will observe, that, agree- able to the clause of the statute formerly stated, a petition for se- questration of the effects of a debtor out of Scotland, mult have for its warrant a horning duly denounced and registrate, which must be at the pier and shore of Leith, and requires sixty days; whilst the sequestration only cuts down such arrestments and poindings as are used within thirty days of the application for se- questration: so that after the alarm is given to all the creditors of such a debtor by the horning at the pier and shore of Leith, they have thirty days to arrest, &c.; a period shore than sufficient, i f they are vigilant, for exclusively attaching the bankrupt’s effects. The result of the whole is, that if the objection pleaded in this cafe is sustained, the creditor of no bankrupt absent from Scotland can reap the benefit of this statute, whether the application is in his own or his debtor’s name; an interpretation adverse to the ex- press words of it: And now that most of our considerable merchants have many mercantile transactions in England, which frequently require their residence or personal attendance in that country, few bankruptcies would happen in which the salutary regulations in- troduced by this new law could be of any avail. The English bankrupt-laws in many respects coincide with the statute statute now under consideration, and have expressly the same material ju stice in view. “ Said statutes intend, (says the 5th act, cap. 30. of his late Majesty), that all such bankrupt’s creditors shall be on an equal foot, and not one preferred before or paid more than another, in respect of his or her debt.” It will not be impro- per, therefore, in the present question, occurring upon a new act or parliament, to see if any lights can be gathered from the Eng- lish bankrupt-laws: A talk the memorialists undertake with be- coming diffidence, condcious that they tread upon unknown ground. After a debtor has committed an act of bankrupt, as it is termed in the English law, and a commission of bankrupt is a- warded and issued, the procedure upon such a commission is in many things sim ilar to the procedure of your Lordships under the new bankrupt act. The commissioners elect assignees, as your Lordships appoint a factor, in whom all the personal estate and effects of the bankrupt are ips o jure vested, for behoof of his creditors; in the same manner as a disposition in this country from the bankrupt, to the factor named by your Lordships, conveys for the same purpose his moveable effects. At the third meeting of the commissioners at farthest, upon notification, personal, or left at his dwelling-house, the bankrupt is bound to surrender him- self, and thereafter to conform himself to the regulations of the statutes of bankruptcy in all respects. from this time for- ward he must undergo as many examinations as the commisioners think requisite; he must answer every question put to him viva voce, or in writing, as the commisioners incline; and i f he re- fuses so to do, or to subscribe his answers in wr i ting, they are to imprison him till he is disposed to comply, He must make a fair and full discovery of all his effects, either in possession or expec- tancy, and deliver up his account-books, papers, and writings, upon oath; and the penalty of an unfair surrender, or fraudulent concealment to the value of L. 20 Sterling, is to be adjudged fe- lony without benefit o f clergy, and punished as such. I f in all respects the bankrupt acts a fair and honest part, i f the commis- sioners are satisfied of this, and four parts in five of his creditors content, upon a certificate signed by the creditors, authenticated by the commisioners, and allowed by the chancellor or judges appointed by him, all his debts are cancelled, personal freedom is secured, secured to him, and agreeable to the Roman benesicium competniæ he is allowed a certain proportion of his effects. Among the various requisites of the English bankrupt-law for bringing a person under the description of a bankrupt, the chief and first mentioned is his withdrawing himself from the jurisdic- tion of the English courts, or, as it is expressed by Blackstone, when enumerating the particular acts of bankruptcy, “ departing from the realm, whereby a man withdraws himself from the ju risdiction and coertion of the law, with intent to defraud his creditors.” Agreeable to which he defines a bankrupt, “ a trader w ho s ecretes himself, or does certain other acts tending to defraud his creditors.” Now, let it be supposed, that an Eng- lishman had committed the act of bankruptcy just now men- tioned, certain it is that the bankrupt laws would apply to, and regulate the distribution of his effects, though it is equally certain, that such a person departing the realm, withdrawing himself from its jurisdiction, and the coertion of the law, or secreting himself, would not comply with any one of the articles chalked out in the form of procedure under a commission of bankruptcy. Would such an one, for example, surrender himself at the third meeting of the commissioners; would he conform himself to the bankrupt- regulations in one single respec t; would he make a fair and full discovery of his effects; would he answer every question in re- gard to his trade; or could the commissioners, for contumacy, commit him to prison, or punish him capitally for not making a fa ir discovery and surrender? All these things notwithstanding, the acts of bankruptcy would distribute his effects equally among his creditors, so far as they could be come at, though they would not confer upon the bankrupt a discharge of the debt, or a proportion of his goods; and from the analogy of these laws and practice, it is submitted, that the statute under consideration applies to the ef- fects in question, and that they may be sequestrated in virtue of it, although the bankrupt failing to appear, deliver up his books, See. cannot thereby lay claim to a personal protection, and might be probably excluded from the benefit of a Cessio bonorum, i f he thought proper to sue for it in this country. It has already been observed, that the enacting words of our statute are very general: “ All debtors who know themselves to be failing in their credit and circumstances, may apply to the court or session,” & c.; whereas the English bankrupt-laws are limited limited to traders; and it has repeatedly afforded employment to the legislature to enact, and to the judges to determine, what par- ticular persons fall under the general denomination of a trader or English merchant, fo as to subject his effects to the regulations of the bankrupt-laws. Any one versant in the English decisions, might probably be able to adduce many, flowing from the doubt- ful phrase ju st now mentioned, applicable at least by analogy to the question in hand. The memorialist s have accidently met with the two following, which appear to be much in point. In the cafe of William Grieve, quoted by Davis, p. 2 1. it was found, that he. a subject of England, lived in Dublin, and traded in Ire- land; but he frequently came to England, bought goods there, and sold them in Ireland. The court held Grieve to be a bank- rupt; and were of opinion, that it is not necessary that he should both buy and sell in England; for many only buy in England and sell beyond sea, and many buy beyond sea, and sell in Eng- land; otherwise, said the court, all intercourse between the two kingdoms, England and Ireland, would be much interrupted, if not destroyed. The title of this case is, Dodsworth contra Ander- son. The second case is in Salkeld’s reports, intitled, Bird versus Sedgwick, in the following words. A gentleman of the Tem- ple went from thence to L isbon, where he turned factor, and traded to England, and broke. Blencowe argued, that the sta- tutes about bankrupts do not extend to persons out of the realm, the subject of them is cases of arrests, outlawries, and departing out of the realm; and the 2 1 st Jac. I. which extends to aliens, is only aliens resident here. Yet the court held him a bank- rupt, by reason of his trading hither, and back again, which gained him a credit here.” The application of this decision to the present case is obvious. The bankrupt there mentioned was a trader at L isbon, in the same manner as Mr Cole is a trader at London. H e occasionally sold goods in England, as Mr Cole has often done in Scotland: and there, as in the present case, it was objected, that the bankrupt-law extended not to traders out of the realm; yet the court were of a different opinion, and subjected his effects to the rules and distribution of the English bankrupt-laws. The memorialist s shall only mention another case immediately connected with this country, and which consi sts with the know- ledge and remembrance of your Lordships. The deceased Adam Fairholm, Fairholm, for a considerable time prior to his bankruptcy, resided frequently in England, and traded there, while he was at the fame time the principal partner of an eminent house in this coun- try. Upon the failure of his circumstances, his English creditors immediately applied for a commission of bankrupt; which was immediately obtained, though it was certain that the whole of his ef fects, where-rver s ituated, could no more be vested in the assig- nees, than Mr Cole’s can, in the present case, in your Lordships factor, feeing Mr Fairholm had very valuable effects in Scotland, which his Scots creditors, and others, instantly attached. If, at the period alluded to, the present salutary act had existed, the memorialists cannot entertain a doubt, that it would have also regulated the distribution of Mr Fairholm’s effects in this country; else this absurdity, or rather iniquity, must have followed, that the Scots creditors claiming under the commission of bankrupt, would have received a ju st proportion of his En glish effects, not- withstanding that he had at the fame time effects here, and was a Scots merchant; whilst the English creditors, upon the footing of his being an English dealer, residing in England, could not, under the present statute, though evidently the offspring of the En glish bankrupt-laws, have sued for, or obtained, an equal di- stribution of his effects situated in Scotland. T he memorialist s shall detain your Lordships no longer, hope- ful they have shown, that the objections of Flammare and Son a- gainst granting the sequestration, are neither founded in the words nor analogy of the statu te; and that, if listened to, they would go far towards destroying the national benefits expected from this new and important law. If, in such a question as the present, pleas of favour could be regarded, it can admit of no doubt to which party they belong. Flammare and Son, creditors for a few hundred pounds Sterling, endeavour to monopolize the whole, or the great- er part of the common debtor’s Scottish effects, while the com- mon debtor prays your Lordships to do equal ju stice to one and all of his creditors; and the other memorialists, whose debts a- mount to more thousands than there are hundreds in Flammare's, earnestly join in the same favourable request. In respect whereof, &c, RO. S I N C L A I R.