Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 CESSIO BONORUM
Subject_3 Denied to a pursuer as not being bankrupt, so far as to entitle him thereto, although rendered bankrupt in terms of the Act 1696.

John Sharp Pursuer of Cessio Bonorum
v.
His Creditors

Date: 4 February 1775

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[Fac. Coll., VII. 23; Dictionary, 11,785.]

Hailes. This is a new case. The debtor says that he is solvent, not insolvent. His reason for pursuing a cessio, instead of paying his debts, is, that, if he were to sell his lands just now, it would not yield so high a price as it would have done when land was wont to go at a higher price. But what then? Although his land may not sell at forty years' purchase, it may sell at twenty-five, and that will do more than satisfy all his creditors.

President. Cessio bonorum is a flebile beneficium to poor people who cannot pay. They must prove how they came to be lapsi bonis; but here Sharp says that he is solvent.

Elliock. Were we to admit this plea, every man in Scotland might pursue a cessio, and so obtain a personal protection.

Auchinleck. This is just as if a man, not choosing to pay his debts, should appoint a factor, and desire his creditors to seek payment from his factor.

Justice-Clerk. The common-law, the statute acts of sederunt, and practice, uniformly hold that they only are entitled to a cessio who cannot pay. The direct contrary is here; Sharp does not so much as say that he has ever offered his estate for sale.

On the 4th February 1775, The Lords found that the pursuer was not entitled to the benefit of the cessio.

Act. R. M'Queen. Alt H. Erskine.

1775. March 8. Coalston.—The cessio bonorum is introduced from humanity. I would never limit it by interpretation. The first reason given for denying the cessio is, that this man has failed in his circumstances through extravagance. This is not good, although it may authorise the Court not to dispense with the habit. The second reason is, that he is not bankrupt, having a land estate. This is not good, for the pursuer is willing to grant a general disposition. It is sufficient to entitle a man to a cessio that he cannot instantly pay his debt: he may have funds, though not ready. From the nature of old Sharp's settlements, it will be hard for young Sharp to raise money.

President. How can a man be entitled to this benefit if he says that he is worth L.5000, and is imprisoned for L.500? The creditors cannot bring his estate to a sale, for he is not bankrupt. The creditors say, “Sell the estate.”

“No,” says the petitioner, “take my estate, and be my factors, answerable to me.”

Gardenston. Although a man wantonly and extravagantly dissipates his fortune, he may still have the flebile remedium, though with the disgrace of the habit. But I do not see how there can be a cessio bonorum when a man does not instruct that he is lapsus bonis. Every single creditor is not bound to have patience while there is a fund ready for payment. The rights of creditors are sacred in our law.

Justice-Clerk. If Sharp had shown that he had done every thing in his power, if he had produced an advertisement offering to borrow L.200, or L.300, or if he had proposed to sell a small part of his estate, I should have listened to him.

Pitfour. Supposed erroneously that Sharp was under an absolute prohibition as to selling his estate, and on that supposition was for altering the interlocutor.

Monboddo. If the pursuer says that he is willing to hold himself a bankrupt, and absolutely gives up his estate, it is well. But, instead of this, he says “I will pay you with a trust-right.”

On the 8th March 1775, The Lords found the pursuer not entitled to the cessio bonorum; adhering to their interlocutor of 4th February 1775.

Act. A. Rolland. Alt. H. Erskine.