The Sun.
London, England, 1823-01-28 00:00:00

EDINBURGH, 3,cx. 23.

COURT OP• SESSION.:-.PIRST DIVISION.
THE RING'S ADVOCATE v. JAMES DUNCAN.
The defender in this calm, who was a grocer and-spirit dealer
in Leith, was, upon the 20th July last, incarcerated by war-
runt of the Peelle or liolyrwd-house, in the goal of the
sanctuary, upon a charge of fraud, at the instate* of hi* creditors.
The defender presented a bill of suspension and liberation,
to which no anew era lodged. But, upon the 20th of Aug.
.a.warrant was obtained by the Lent Advocate Moan the Court
of -Justiciary, for incarcerating the defender in tile tolbooth
of Edinburgh, upon a eta ,rge of fraud 'and fraudulent bank.
ruptcy.
The defender then applied to the Justiciary for letters of
intimation, in terms of the Act 1701, cap. 6., which were
served on the Lore! Advocate, on iliq„,l6th August. - -
The eixty days prescribed by the Act having expired on the
ifith October, without any indictment lievirig een served bn
the defender,' he' pplied to the Juitiefitry for w barrant of libe-
, ration. But on the 12th October, a petition and complaint. by
the Lord Advocate founded upon the Act
.106, cap. A, eherg-
ing the defender• With fliuidtifent bankruptcy, was presented
.to the Firet Division of the Centre; .and was served upon the
.defender on the 14th et' the *bow. month. On the ltith October, Lord'Nfeadowtink, one of the Coin-
missioners of ilustielary,' refused the defentier‘ti petition for
liberation .; " reserving to hint, if so advised, toapply for libe-
ration to the Coureof Session, or, Lord th.dinarybn the bilis."
' The defender lodged answers to the petition and complaint
before the Court of Session. But, the period allowed by the
Act 1701, cap. 6, to the Lord Advocate, " for insisting in the
trial and prosecuting the same to a conelintien," having
alerted, the defirrider, upon the 28th November, prosetted a
petition to that Court for liberation within 24 hours, in tentni
of the Act.
Answers were lodged for the Lord Advocate, in ihleh him
bordehip maintain that the Court of Session'
.had :a Price-.
il
rive jurisdiction in e case of fraudulent bankruptcy ; and
that, neither to that case nor to the case eflorgery did the pro-
visions of the Act 1701 apply.
The Court ordered- a hearing at the bar e . and, an the ,21sr
.
curt. delivered their opinions.
Lords TILItMAND and GreLers were clearly of opinion,
that the Court had only a cumulativejoriedietion,with the Jose
ticiery in the case of fraudulent bankraptcy ; touLtinte the Act'
in question cornprehended that case as well as every other that its terms were imperative, and left no alternative to the
Court but to give effect to them, independentay of all intent-
veniences which might be experienced, and winch. if they ex-
isted, it belonged to the Legislature alone to remedy.
Lords, Su ocoxst -and Ba 1.0 Ravi ftnd the Loan Pull -
rir, XT, were of a different opinion, and, it wesaceonlinglY de-
rided, that the provisions of tne Att, 1701, slid not apply ter the
case of. fradulent bankruptcy, in which the Court had a rel.
votive jurisdiction.
... .• ' The case excited strong interest, and we obeerved the Lord
Juggle* Clerk within-the bar during the advising. The speot,
of Lord Githes made apowerful impression. Ws Lordship
gro
took up high constitutional as well it le al und*, and dell.
cored his opinion with an occurs worthy of the subject. -
Counsel ?or the prosecution—The Lord Advocate the Soli..
eitor.Cieneral, and Advocates-Depute, 'Agent, Adam Rid-
land, Esq.
Couture] for the defendere-Flosteis Jeffrey and Jetn*s M.
coucehle, Bags. Agent, Robert Playfair, E'sq.