In the Scottish Courts
| Published date | 01 April 1958 |
| DOI | 10.1177/002201835802200206 |
| Date | 01 April 1958 |
| Subject Matter | Article |
In the Scottish Courts
BANKRUPTCY-UNDISCHARGED
BANKRUPT
Kaye v.
H.M.
Advocate (1957
SL.T.
357)
THE unfortunate result of having different statutory provi-
sions to meet practically identical circumstances in
different parts of this small island
of
ours is well exemplified
in this case.
Kaye was charged with, being an undischarged bankrupt,
"having been sequestrated at Kendal, Westmorland, on
3rd
November, 1949," he did obtain credit to
the
extent of
£10
or upwards without disclosing
that
he was an undischarged
bankrupt, Contrary to
the
Bankruptcy (Scotland) Act, 1913,
Section 182.
On
the calling of the complaint he took two objections to
the
relevancy of it. First, he argued,
that
sequestration was a
purely Scottish process
and
he was not,
and
could not, have
been sequestrated at Kendal.
He
also argued
that
he was
not
an undischarged bankrupt within
the
meaning of the Bank-
ruptcy (Scotland) Act, 1913, because
the
definition in
that
Act was exhaustive
and
referred to a person who had
not
received his discharge from acompetent court in Scotland.
The
Report does not give
the
Sheriff's reasons for his
decision
but
he rejected both these arguments
and
passed a
sentence of 16 months' imprisonment.
On
appeal, however,
the
High
Court
of Justiciary reversed
the
Sheriff.
Lord
Macintosh, in the course of his opinion, went very fully into
the
law
and
both
the
Lord
Justice Clerk
and
Lord
Blades
agreed with his Opinion.
Lord
Macintosh pointed
out
that
sequestration in bank-
ruptcy
was a purely Scottish procedure available only in the
case of debtors subject to
the
supreme courts of Scotland
and
that
whatever had happened to Kaye at Kendal he was
certainly
not
sequestrated there. According to the indictment
Kaye was an undischarged bankrupt because he had been
II6
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