Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Collector of the King and Lords' Taxation
v.
Thomas English

Date: 18 January 1675

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Thomas English, younger of Straitoun, being apprehended, by caption, for payment of the rests of the taxations 1633; Thomas English, elder, his father, grants bond either to pay these taxations or to produce discharges, or otherwise the person of the said Thomas English, younger, betwixt and such a certain day. Being charged thereupon, he suspends, on this reason, That his bond is alternative, and thereby he hath his election, and is willing to produce his son, which is the third member of the alternative. The charger answered, That common rule in all alternatives, electio est debitoris, hath these limitations; 1mo. if there be not mora; but here the suspender's offer to produce his son is post moram, there being a determinate term and time appointed by the bond to produce him, which is long since past. 2do. Producing of the son is not receivable, nisi rebus integris, although it were at the term; but now the son is denuded of his estate, and doth pretend that he is free by his Majesty's proclamation remitting taxations and other public dues, penal and arbitrary, or pecuniary mulcts: which proclamation, if it cannot free the son, he hath no other pretence to free him; and, if it would free him, as it cannot, the matter is not entire; for, if he had been produced at the day contained in the bond, which is long before that proclamation, when he had no defence, he would certainly have paid; and so can pretend no benefit of a subsequent proclamation. It was answered, That, albeit the bond contain a term to produce the son, yet it neither expresses the place, nor person in whose custody he should be put; and, therefore, as to these, it required a requisition of the charger, before which there could not be mora. 2do. The suspender offers to produce his son solvent, and in as good condition as he was; and he might justly make use of his Majesty's proclamation supervenient. It was replied, That producing of him is not relevant, unless he renounce the benefit of the proclamation. 2do. The proclamation excepts the case where bonds are granted, and excepts Duke Hamilton's right, who was not only general collector, but had an assignation from the King for satisfying of debt; and the King discharges only what belongs to himself, and not the taxations belonging to the Lords. The Lords found, That the producing of the suspender's son was not relevant, unless he renounced any proclamation after the term, whereby res non est integra; but did not dip in the proclamation.

Vol. II, Page 305.