Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Lord Mordington, Petitioner
1676.
July.
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The Lord Mordington being incarcerated in the tolbooth of Edinburgh for debt, gives in a petition to the Lords, craving to be set at liberty, in regard his creditors apprisers, and other infefters, had all his estate in their possession, and he was content to dispone the reversion to any the Lords should think fit, to the effect it may be sold for their payment. The Lords refused the bill, alleging, his lawyers who had drawn it, (Sir G. Lockhart was the penner of it,) knew not the laws nor acts of sederunt; for, by an act made on the 21st of July, 1675, the Lords ordain the creditors who incarcerate or arrest to be cited, and called, and heard, to object against the bill, (and which ought also to be by a bill of suspension, relaxation, and charge, to put at liberty,) which he had not done; and here they would not consent to his liberation upon his disponing of the Scots estate, unless he also made over to them his English interest; which, he conceived, as the Scots law could never reach, so it could never force him to denude of it; and though there were no act of sederunt for it,. natural equity persuades that the parties interested be heard. L. 8. D, de Aqua, et Aquæ pluviæ arcendæ.
Then Mordington caused cite, and require them all by a notary, before witnesses, conform to the said act, and produced the intimation, with his bill. The Lords again reflected on his advocates, and found it not sufficient till he raised a summons of bonorum. And yet the method aforesaid might seem equivalent, and to be dispensed with in a nobleman; but he was a Hamiltonian.
Then the President, upon a bill, gave him a deliverance, permitting him to go abroad in the day time with a guard, he always returning before eight o'clock at night; it always being on the magistrates their peril if he made his escape. With which quality it was just as good as no licence; it took back with the one hand what it gave with the other; and the magistrates would not obtemper that warrant, since they could do it without such an order, if they minded to run the hazard.
At last, in February, 1667, the most part of the creditors consenting, Mordington was by the Lords set at liberty, without a formal cessio bonorum. Which seemed strange.
