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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robert Watson v His Creditors. [1774] Hailes 565 (5 March 1774) URL: http://www.bailii.org/scot/cases/ScotCS/1774/Hailes010565-0322.html Cite as: [1774] Hailes 565 |
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[1774] Hailes 565
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 CESSIO BONORUM.
Date: Robert Watson
v.
His Creditors
5 March 1774 Click here to view a pdf copy of this documet : PDF Copy
The pursuer was apprehended on a meditatione fugæ warrant, and committed to prison until he found caution judicio sisti: he did not find caution; but pursued a cessio bonorum against his creditors.
The following opinions were delivered:—
Hailes. I doubt how far a man who has been imprisoned till he should find caution judicio sisti, can pursue a cessio bonorum: he is not imprisoned for a debt, but ad factum præstandum: he may surely find caution to appear if he has any character at all. The question is not new: the Court has repeatedly held the objection to be good.
[Mr Dickson, for the pursuer, quoted a case, Thomas Small against Sir James Clerk in 1764.]
Coalston. At this rate, the pursuer must lie in prison for ever. He says he cannot find caution. If we permit not the cessio to proceed, where is his remedy?
Kennet. His remedy is in a suspension and liberation on juratory caution: this will set him at liberty: if thereafter any of his creditors should incarcerate him, he will be in the shape of the law.
Monboddo. I should doubt more of the legality of that remedy than of the one sought. There must be a relevant ground of suspension before we can grant liberation. We cannot give a man his liberation merely because he cannot pay.
On the 5th March 1774, “The Lords found that, in this case, the pursuer may insist in a cessio.”
Act. J. Dickson. Alt. Absent. N.B.—This humane interlocutor was pronounced with but two or three contradictory voices, and without a vote. It overturns what was considered to be law. Great is the favour of every man who appears in the shape of a dyvour.
The electronic version of the text was provided by the Scottish Council of Law Reporting
