Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Helen Hamilton and Thomas Mutter v. James Alston
Date: 8 February 1708
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James Alston, merchant, being debtor to Helen Hamilton in 700 merks by bond, and she, and Thomas Mutter her husband, having charged him, he suspends, that he had obtained a cessio bonorum in 1662, as not able to pay his debt, by some losses and misfortunes; in which decreet this woman is expressly called.
Answered,—That being an extraordinary remedy, founded on commiseration and mercy to our human nature, so long as his indigent difficulties lasted they were not to grudge; but now his circumstances being altered, and he having enjoyed a lucrative and beneficial place, as clerk to the kirk-session of Edinburgh, these nine or ten years bygone,—he ought not to protect and screen himself under his bonorum; for law says,—If such a debtor come ad pinguiorem fortunam, and grow richer, then he is convenable, though not in solidum, yet in quantum facere potest; he enjoying beneficium competentice: as appears from Sueidewin, ad sect. ult. Instit. De Act.
Replied,—The office he enjoys from the Town of Edinburgh is precarious, and may be recalled at their pleasure; and its emoluments and perquisites are no more than a precise aliment to him and his family: likeas, when he obtained his cessio, he gave a general disposition to his creditors of all his effects, whereof this charger may reap the benefit if she pleases.
Duplied,—If he will produce his count-books of his income by the place he now enjoys, it will evidently appear that he has a considerable excresce above a suitable aliment and subsistence; and the chargers crave only a part of that, conform to the Lords' modification, first, what may fairly serve him as an aliment; and 2dly, what share they shall get of the superplus. And it were iniquitous to suffer him, by such artificial methods, to cover his so gainful acquisitions from his creditors, that being too thin a veil to palliate so transparent machinations to defraud creditors. And this is no new practice; for, in the case of Beg and Davidson, 9th July 1688, Beg having arrested Davidson, preceptor in Heriot's Hospital, his salary and fee; and it being alleged, That it was alimentary, and so not arrestable, and that he had a decreet of bonorum; yet the Lords found, in so far as it exceeded a just and rational aliment, the same was affectable by his creditors, notwithstanding of his bonorum.
The Lords resolved to hear the case more fully, before they should determine its relevancy
