Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 EXECUTOR - LIS ALIBI PENDENS.
Subject_3 The Executor of a party, deceased in Jamaica, had found security in terms of the law of the island. He was sued in the Courts of Jamaica by a creditor of the deceased. Happening to come to Scotland, the pursner had him apprehended on a meditatione fugæ warrant. The Lords ordered him to be set at liberty.

Hugh M'kay
v.
Charles Blackstock

Date: 22 December 1770

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Blackstock was creditor to the deceased Hugh M'Kay of Jamaica, to whom the above-mentioned Hugh M'Kay was executor, and in that character had found security for his intromissions in Jamaica, in conformity to the laws of the island. Blackstock commenced an action in the Courts of Jamaica against M'Kay, as executor, for the recovery of his debt; but, M'Kay having come to Scotland during the dependance of that action, Blackstock gave in an application to the Sheriff of Edinburgh, and had him apprehended as in meditatione fugæ, and incarcerated by a warrant which ordered him to be detained until he should find caution judicio sisti, in any action brought, or to be brought against him for payment of the debt in question, in the courts of Scotland. M'Kay presented a bill of suspension and liberation, on advising which the following procedure took place.

Coalston. It was determined, in Sir Archibald Grant's case, that an executor having found security in England, was not bound to account here. This is reasonable, for otherwise matters would become inextricable. The only difficulty is, that it is averred that the suspender has absconded from Jamaica. But then this averment is not offered to be proved, and the intelligence from Jamaica does not imply that such is the case.

On the 22d December 1770, “the Lords ordained the suspender to be set at liberty.”

For M'Kay, A. Lockhart. Alt. H. Dundas. Reporter, Kaimes.