Scottish Court of Session Decisions

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

John Daikell
v.
David Hume

Date: 18 February 1675

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John Daikell, merchant in London, having charged David Hume for payment of £20 sterling, due to him by bond, granted by the late Earl of Hume, as principal, and him as cautioner, whereupon he had obtained decreet of suspension; the said David suspended, the second time, on this reason,—That this bond being granted in England, to a merchant there, the Earl of Hume was incarcerated, or arrested in prison, upon this very bond; and, before he was liberated, (being under the guard of his keeper,) he died: and, by the law of England, the principal debtor so dying in prison extinguisheth the debt, and there can be no farther satisfaction thereof. It was answered, That the decreet of suspension in foro is opponed, wherein this was proponed and repelled; and so is not now receivable. It was replied, That the decreet bears it was repelled, in respect it was not eiked nor libelled; yet, upon consigning of £12, the same was receivable; and, medio tempore, it was unwarrantably extracted shortly thereafter. The Lords reponed the suspender, upon consignation of the £12, and paying the expenses of the decreet of suspension; and sustained the reason of suspension, to be proven by the judgment of the Judges of the Common Pleas in England, by the mouth of the Chief Justice.

Vol. II, Page 324.