The Sun.
London, England, 1812-12-12 00:00:00

CO 71 _4 .

couxr OF SESSION,
STCOND DIVISION, NOV. 28.

Ito AL A::K OF -SCOTLAND V. CUTHBERT AND

OTHERS

'l.llO luestion at issue in this case is. one of
very .6nsiderable importance, not. merel; to the
paßies, but to the law of both
,Scotland and ing-,
land. William Scott atul Thonias Smith, bankers
and insurance,brokerS in Edinburgh ; John Stein
and James Szeiti-, junior, distillers at Canonmills ;
Robert Stein, distiller at Kilbagie ; and Robert
mith, residing in London, carried on business as
Copartners, in ScOtland, under the ,firm- of Scott,
Smith, Stein, and Co. and, in London, undei' the
first of Stein, Smith, and Co. A commission of
bankruptcy Was awarded against them-in England,
on the llth day of August last,.and the defe;nlers
in this ci se were the assignees-, named and ap-
pointed Under the commission. Upon time Ist,
Septeinher,t 1812; the bankrupts entered 'into an
indenture with the assignees, whereby they sold,
assigned, nd conveyed'to them the mr:h.)he of their
property,- heritable and movable, situated in
Scotland ; 'and ttpon the 7th and Bth of Septem-
ber, they also executed similar assignations in fa-
vour of the as::ig•itees, in the Scots form.
The Iloyal Batik of Scotland held two bilN,
one for 5000 L and ;the other.for 60001.
.drawn. by
Scott, Stith!), Stein, and Co.-of Edinburgh, upon
Kensington, Styan, and Adams, late bankers in
London. These bills Were discounted by4Scott,
Smith; Stein, and Co. at the office .of the Royal
Bank,- and Were by the Royal Bank indorsed to
the Bank of England. These. bills were dish:;-
'Mitred, and returned,to this country. Diligence
was raised upon them, and the firm of. ScOtt,
Smitb,• Stein, and Co. and John Stein 4ind- Ro-
bert Stein, the individual partners in this cOnn--
try, were by a messenger's execution, of search,
made bankrupts, upon the 25th of Ang. 1812,
The BAnk having taken_ these steps: to yen(ter
the company bankrupts, upon the '2oth. day of,
August- last, presented a petition to the Lord
Ordinary on the bills, pray" ;ng for a sequestration
against 'Scott, Smith,' 'Stein, and Co. as a f:0111-
pany, and agaiust.John Stein; and Robert Stein,
as indiViduals.

•
Appear,inee was made for the assignees• umler
the English co►uumission of bankruptcy, and, upon
hearing counsel, Lord Bannatyne, ordinary, ap-
pointed the pales .to state their pleas, in mutual
infOrmations- to the Court. , - •

-For the English assignees it was argued, that
a Commission of bankruptcy was issuing against
Messrs. Stein and Smith by the Lord Ceaancellor,
and; in consequence of that com Mission, their
whole effects, real and personal, wherever situat-
ed, were conveyed to the assignees regularly under
the commission, and those assignees oppose the
present attempt of the ScOts• creditors, who 'apply .
for srquestratidn of ;the very same estate,-that it
maybe distributed in Scotland, and, according to
the rules of the Scots.bankrupt law,-on the gene-
ral ground that the whole of the bankrupt estate
is already vested ldgally in the English assignees.
Qtt looking at the authorities. on this point, both
in England and Scotland, the plea maintained IntS
been laid down, by writers of established charac-
ter; as perfectly fixed by the law of both coun-
tries ; and although the effect of the foreign com-
mission- of bankruptcy , was long i a question .of
difficulty in Scotland, the ..just and liberal: prinei-
pies- of inter-national jurisprudence, that had been
for a considerable period before recognised in the
practice of the English.courts, have at last been,
'adopted, and on the authtiritv of a Mass of deci-
sions, it is now held to be the spirit of both
Sciats and Englishbankriipt-law, that when either
a commission of bankruptcy is awarded in one
country, or a sequestration in the, other,' tbe whole
of the property of. the bankrupt, real as well as_
personal, and situated without as well as within
the jurisdiction, shall; wader that sequestrittion or
commission, be distributed among the creditors,
and; of consequence, that there can be noCo-exist-
ing commission and sequestration with regard to the
same estate:" A number of English anthorities and
decisions support thifZ doctrine ; and although it
was no doubt at one time liehl to be the. law ;of
Scotland, that an English commission• of bank-
ruptcy did not operate extra territorizem, and which
principle was founded on a trio great degree of
-jealousy of the interference of English, forms and
English jurisdiction yet, in the great case of..
Struthers against Reid and others, Ist February
•1803,.the Court, after a bearing in presence, pre- '
• fcrred the English assignees to, one arrester of the
goods of the bankrupt in Scotland ; and in the
• case of Fairholme'S. creditors, 20th of' Novem-
ber
the. Court- held the English assignment
•to reach the effects of the bankrupt 'in Scot-
land, appr.-)ved of the case of Struthers, and
preferred the English assignees to the Scots ar-
rester. These decisions, undoubtedly, put the
Scots law on precisely the same footing as the
English, law, so far as movable property is con-
cer!ted ; and if in neither ecumtry the decisions
have extended yet to heritable property, it is-only
because the question has never been actually tri-
ed ; and although the doctrine, niobilior non ha-
bent stlMo cannot, -of course, extend to this-9e-
' cies- of property, the principle of enabling the as-
signees under a commission, or the trustees under
a saquestration, to proceed unmolested in applying
tine bankrupt funds to the payment of the credi-
tors at large, is equally applicable to the heredi-
tary As to the moveable estate, and the domicile
being in London; the estate is there also. The
"plain result' of. the authorities from the law both
.• of England and Scotland therefore is, that the se-
questration applied for by the Royal Bank must be
inept, the bankrupt suck being already validly
Conveyed to the assignees. Indeed such a seques-:
-,trition would be
,worse than inept, for he would
'-evidently have the effect of embarrassing those
aislgneeS in the execution of their trust,, and oc-
casioning a load of most useless and absurd ex-
'.pence. If the old law as to the operation of an
English commission in this country had yemained
unuttered as to the personal estate, or if Messrs.
Steins a•nd Smith, in defiance of the duty incum-
bent upon them, had refused to execute 1t convey-
ance of their heritage here, there might have ,bean
some plausibility in sate present demand of the