Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Thomas Inglis
v.
The Collector of the Taxation

Date: 19 January 1675

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Thomas Inglis of Stratyrum, being obliged, by bond, to pay the taxations due since the year 1633 to the collector, or to enter his son prisoner in the tolbooth at a certain day; being charged for payment, did suspend upon this reason,—That the obligation being alternative, et electio est debitoris, and he is content to produce his son; but, if he were produced, he could not now be imprisoned for the said debt; because the late act of grace and proclamation discharges all these taxations in favours of the subjects.

It was answered, That, the day for entering his son prisoner being long since past, the suspender did lose the benefit of the alternative, and so was liable in payment. To the second it was answered, That there is an exception in the proclamation of all bonds granted for taxation.

The Lords did find, That, the day being long since elapsed, the offer to make the son prisoner was not receivable, albeit the charger had not required him upon the special day, nor taken instruments upon their refusal; because, in law, dies interpellit debitorem; and he ought to have presented to the bailie, or keeper of the tolbooth, his son, and taken instruments thereupon, that it was not his fault that he was not imprisoned. And, as to the second, they found the charger was in the case of the exception of the proclamation, the bond being prior thereto; as likewise, that there being a reservation in favours of Duke Hamilton, that he might pursue and uplift until he should fit his account, and it were found he were paid, the charge, at the collector's instance, was well founded, notwithstanding of the proclamation.

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