Scottish Court of Session Decisions

Subject_1 PRISONER.

M'Fadzean
v.
Naismith

1744, June 21.
Case No. No. 8.

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A bond of presentation being granted for one Merrie under caption, who fell ill before the day of presentation, so that he could not be presented, and died of that illness; when the bond came to be protested, the cautioners said by way of excuse, that he was fallen so ill that he could not be presented, and therefore protested to be free. A proof had been allowed in the Outer-House, and the indisposition clearly proved. Some of the Lords doubted whether sickness, or any other accident, or even death itself was a sufficient defence; others thought it a good excuse, but that the cautioners should have informed the charger where the debtor lay, and to become bound to present him against that day; but others thought that not necessary, because the charger had not asked where he was, nor demanded such new security; but upon the whole, the Lords without a vote sustained the defence or reasons of suspension, and assoilzied the cautioners.