Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 CESSIO BONORUM.

Hamilton, M'Alister, and Company
v.
William Borthwick

1772.

Click here to view a pdf copy of this documet : PDF Copy

Hamilton, M'Alister, and Company, merchants in Edinburgh, insisted in an action against William Borthwick, for payment of an account of cloth furnished to him by them. Borthwick denied furnishing, and further pleaded, in defence, a posterior decreet of cessio bonorum, in which they had been called. The company obtained decreet; which Borthwick suspended. The suspension came before Lord Coalston. His Lordship “ found the letters orderly proceeded, and decerned; reserving to the suspender all defences competent to him, on his decreet of cessio bonorum, if the charges shall hereafter proceed to execution against his person; and reserving to the chargers to show cause why the said decreet should not be effectual against them.”

The chargers sought expenses; which the Ordinary refused: against which they reclaimed to the Lords. The Lords refused the bill; at the same time, in their arguing, approving of the interlocutor of the Ordinary in causa.

From this decision it would seem that a decreet of cessio is simply a guard against personal execution, but no bar to a creditor's affecting or obtaining decreet to affect the after acquisita of the debtor who had obtained it.

The point again occurred, and was reported by Lord Kennet, 11th July 1778, when the Lords gave the same opinion, viz. That a cessio saved only from personal diligence; at the same time, they thought, that if, in a cessio, a debtor had a beneficium competentiæ, though the extent is not well determined, he would have the same as to after acquisita; but then that ought to be no stop to the diligence of a creditor; leaving the debtor, when the case happened, to make it out as he best could,—Donaldson against Reid. They did not determine positively as to the beneficium competentiæ.

This point again occurred in the case:—